SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees.
No. 92-5255.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 17, 1993. Decided July 23, 1993.
Ellen J. Durkee, Attorney, Dept. of Justice, with whom Martin W. Matzen and Jean E. Williams, Attorneys, Dept. of Justice, Washington, DC, were on the brief, for appellees.
Opinion for the Court filed by Chief Judge MIKVA, except section II(A)(1), which is filed per curiam. Opinion concurring in section II(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section II(A)(1) filed by Circuit Judge WILLIAMS.
Opinion dissenting in part filed by Circuit Judge SENTELLE.
MIKVA, Chief Judge:
Appellants, a group of non-profit citizens’ groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service (“FWS” or “agency”) under the Endangered Species Act (“ESA”),
I. BACKGROUND
The Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.
Among the more important sections of the ESA is
[W]ith 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 ... take any such species within the United States or the territorial sea of the United States[.]
The ESA defines “take” as follows: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
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.
The other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range....”
On its face,
Whenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....
Appellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of
Except as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. § 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....
The district court rejected appellants’ challenges to both
II. ANALYSIS
A. The “harm” regulation
1. Compliance with the Endangered Species Act
Appellants argue that the “harm” regulation,
We hold, per curiam, that the “harm” regulation does not violate the ESA by including actions that modify habitat among prohibited “takings.”
2. The “void for vagueness” claim
Appellants also maintain that, on its face, the “harm” regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited “harm” includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107–09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of “harm” in 1981:
Some of the comments in favor of the redefinition ... viewed the action as limiting “harm” to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however,
may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.
46 Fed.Reg. 54,748, 54,748 (1981).
Appellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is “significant” and when such a modification “significantly impair[s] essential behavioral patterns.”
We are urged to address this problem by construing the regulation to state that “harm” occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.
It is true, as appellants assert, that regulations with criminal sanctions must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial construction of the regulation) merely by showing that it will be impermissibly vague in the context of some hypothetical application.
The seminal case concerning pre-enforcement facial challenges on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). Flipside states that when a court examines such a challenge, “assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. at 1191 (emphasis added). Although the Supreme Court does not state precisely what it means by “constitutionally protected conduct,” it is clear that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith v. Goguen, 415 U.S. 566, 573 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (“economic regulation is subject to a less strict vagueness test”).
Appellants, who are not currently the subject of an enforcement action under
In fact, the regulation contains features that prevent it from being invariably vague as applied. The definition of “harm” explicitly limits prohibited habitat modification to that which “actually kills or injures wildlife.”
In light of these limitations, there are obviously types of activity, including habitat modification, that
Because the regulation is not vague in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforcement contexts may arise in which the challenged regulation would be considered impermissibly vague. Under Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete challenge to a particular application of the regulation.
Appropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps “that will sufficiently narrow potentially vague or arbitrary interpretations” of the regulation. 455 U.S. at 504, 102 S.Ct. at 1196. “Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.” Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52 (1966), overruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324 (1989).
B. The blanket extension of protections to all threatened species
Appellants also challenge
Whenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....
The challenged regulation provides in relevant part:
(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which implements the prohibitions contained in
16 U.S.C. § 1538(a)(1) ] shall apply to threatened wildlife, except § 17.21(c)(5).*
*
*
(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of [paragraph (a)] of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.
In short, the FWS has, with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations. Although appellants’ dissatisfaction is focused entirely on this treatment of the “take” prohibition, the regulation applies all of the
Appellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that
We are not persuaded. As was the case with the “harm” regulation, there is no clear indication that
Appellants argue that the plain language of the ESA establishes that Congress intended regulations extending the
[The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species. Among other protective measures available, he may make any or all of the acts and conduct defined as “prohibited acts” as to “endangered species” also prohibited acts as to the particular threatened species.
S.REP. No. 93-307, 93d Cong., 1st Sess. 8 (1973). (emphasis added).
It is, however, less than clear that the language of
Furthermore, in response to appellants’ use of the Senate Report, appellees counterpose the use of plural language in the discussion of
The Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has almost an infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.
H.R.REP. NO. 93-412, 93d Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the perils of attempting to use ambiguous legislative history to clarify ambiguous words within statutes.
In any case, even assuming that the reference to “any threatened species” in the second sentence of
Furthermore, regardless of the use of singular and plural words,
Appellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the
This argument also fails, because regardless of the ESA’s overall design,
Moreover, FWS regulations provide for the issuance of permits, under certain circumstances, to individual applicants who request permission to commit otherwise prohibited activities with respect to threatened wildlife.
The new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act provides for endangered wildlife.... The new Subpart D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Subpart C ... for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply.
40 Fed.Reg. 28,713 (1975).
The FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve different approaches to the conservation of endangered and threatened species, the regulatory scheme satisfies the statute.
Lastly, appellants claim that
As appellees argue, however, there is a reasonable reading of
In sum, we find it far from clear that
III. CONCLUSION
Neither the regulation defining harm nor the regulation extending blanket protection to threatened species is an unreasonable interpretation of the Endangered Species Act. Moreover, the “harm” regulation is not impermissibly vague on its face. We therefore affirm the judgment of the district court and uphold both regulations.
It is so ordered.
MIKVA, Chief Judge, concurring in Section II(A)(1) of the opinion:
I write separately in order to articulate fully my reasons for rejecting appellants’ argument that we should set aside the “harm” regulation as violative of the ESA.
When we review an agency’s construction of a statute that it is entrusted to administer, we follow the deferential approach set out by Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). “If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 108 S.Ct. at 2782.
Appellants contend that Congress clearly intended to exclude habitat modification from the types of takings prohibited by the ESA and that this Court thus owes no deference to the FWS “harm” regulation. I disagree. In my view, the “harm” regulation conflicts with neither the ESA itself nor its ambiguous legislative history and is unquestionably a permissible and reasonable construction of the statute. I therefore do not accept appellants’ claim that
It is hard to construct a legislative scenario in which Congress would have avoided the problem of habitat modification when it crafted the ESA. The drafters of the statute realized that the degradation of habitats posed one of the gravest threats to the continued existence of endangered and threatened species. As the Supreme Court has noted:
In shaping [the ESA], Congress started from the finding that “[t]he two major causes of extinction are hunting and destruction of natural habitat.” S.Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats....
TVA v. Hill, 437 U.S. 153, 179 (1978). Indeed, the first stated purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved....”
Appellants acknowledge that Congress intended to halt injurious habitat modification
According to appellants, the legislative history of the “take” provision establishes that Congress did not mean for that term to encompass habitat modification. They note that the original bill that was referred to the Senate Committee on Commerce, S. 1983, defined “take” to include “destruction, modification, or curtailment of [an endangered species’] habitat or range.” S. 1983, 93d Cong., 1st Sess., § 3(6) (1973). The bill reported out of committee, however, did not refer to habitat modification in the definition of “take.” This omission, appellants argue, evinces Congress’ intent not to include habitat modification within the scope of prohibited “takings.”
Appellants maintain that Congress intended instead to address the problem of habitat modification caused by private actions on private lands exclusively through land acquisition by the federal government. Section 1534 authorizes the Secretary of the Interior, as well as the Secretary of Agriculture with respect to the National Forest System, to acquire land as part of “a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species....”
I find the legislative history to be most ambiguous regarding whether Congress intended to include habitat modification within the meaning of “take.” It is true that the Senate Committee chose not to use the S. 1983 definition of “take,” which specifically encompassed habitat modification. Instead, the Committee adopted a definition from the other bill under consideration, S. 1592, which did not explicitly include habitat modification. But as the district court noted, there is no indication in the legislative history as to why the Committee selected one definition over the other.
There is nothing to suggest that Congress chose the definition it did in order to exclude habitat modification. The Committee may have rejected the S. 1983 definition only because it apparently would have made habitat modification a per se violation of the ESA. It is certainly possible that the Committee did not intend to foreclose an administrative regulation prohibiting habitat modification—so long as that prohibition was accompanied by limitations, such as those contained in the FWS regulation under review, requiring that there be actual injury or death to the species. In any case, Congress manifested no clear intent to exclude habitat modification from the “take” definition. Indeed, the Senate Committee Report states that “‘Take’ 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, 93d Cong., 1st Sess. 7 (1973).
Appellants’ contention that Congress intended land acquisition to be the exclusive instrument for curbing habitat modification on private lands is similarly speculative. Nothing in the language of
There is also little force behind appellants’ claim that including habitat modification within the meaning of “take” renders the land acquisition provision of
Appellants argue that the agency must interpret the word “harm” narrowly so as not to include habitat modification because none of the other “take” terms—“harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect”—represents a land use action that injures wildlife only indirectly. They argue that under the principle of statutory construction known as noscitur a sociis, a general term in a list should be interpreted narrowly “to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961).
Despite appellants’ suggestions, however, the other prohibitions can limit a private landowner’s use of his land in a rather broad manner. In particular, the prohibition against “harassment” can be used to suppress activities that are in no way intended to injure an endangered species. The House Report stated:
[Take] includes harassment, whether intentional or not. This 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.
H.R.REP. No. 93-412, 93d Cong., 1st Sess. 11 (1973). Indeed, the FWS has defined “harass” in a way that is almost as broad as the “harm” definition:
Harass in the definition of “take” in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.
Noscitur a sociis means, literally, that a word is known by the company it keeps. Jarecki, 367 U.S. at 307. In the definition of “take,” the term “harm” is accompanied by an assortment of words ranging from the precise and narrow “shoot” to the vague and expansive “harass.” Consequently, even if I were willing to find an agency’s construction of a statute to be impermissible based solely on a seldom-used and indeterminate principle of statutory construction, I would not do so in the present case.
Although the ESA is generally ambiguous as to whether the “take” prohibition forbids habitat modification, there is at least one feature of the statute that strongly suggests that Congress did in fact intend to include habitat modification within the meaning of “take.” In 1982, Congress amended the ESA to include a provision authorizing the FWS to issue a permit allowing “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”
Overall, there is nothing in the ESA itself or in its legislative history that unambiguously demonstrates that the term “take” does not encompass habitat modification. Indeed, as I noted in my discussion of the 1982 amendments, there is evidence to the contrary. Chevron commands that unless it is absolutely clear that an agency’s interpretation of a statute, entrusted to it to administer, is contrary to the will of Congress, courts must defer to that interpretation so long as it is reasonable. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.
In upholding the challenged regulation, we join the Ninth Circuit, which has similarly held that the agency’s inclusion of habitat destruction in the definition of “harm” is a permissible interpretation of the ESA. That Circuit has stated that “[t]he Secretary’s inclusion of habitat destruction that could result in extinction follows the plain language of the statute because it serves the overall purpose of the Act....” Palila v. Hawaii Dep’t of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir. 1988).
WILLIAMS, Circuit Judge, concurring in Section II(A)(1) of the opinion:
I agree that the “harm” regulation,
SENTELLE, Circuit Judge, dissenting:
As we have observed, “some will find ambiguity even in a ‘No Smoking’ sign.” International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987). In the present case the Fish and Wildlife Service has established that it would not only find such ambiguity, but would deem a congressional authorization for the erection of “No Smoking” signs to authorize the adoption of regulations against chewing and spitting.
As Chief Judge Mikva notes, this case is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). That decision mandates a two-step analysis. At the first step “we inquire into whether Congress has directly spoken to the precise question at issue. If we can come to the unmistakable conclusion that Congress had an intention on the precise question at issue, our inquiry ends there.” Nuclear Info. Resource Serv. v. Nuclear Regulatory Comm’n, 969 F.2d 1169, 1173 (1992) (en banc) (citations and internal quotation marks omitted). At the second step “if the statute ... is silent or ambiguous with respect to the specific issue before us, ... we defer to the agency’s interpretation of the statute if it is reasonable and consistent with the statute’s purpose.” Id. (citations and internal quotation
As a colleague of ours has observed, “the second prong of the Chevron inquiry, whether an agency’s interpretation of an ambiguous statutory provision is reasonable, is also not devoid of content.” National Ass’n for Better Broadcasting v. FCC, 849 F.2d 665, 671 n. 3 (D.C.Cir.1988) (Wald, C.J., dissenting). In the present case, I see no reasonable way that the term “take” can be defined to include “significant habitat modification or degradation” as it is defined in
In my view, the fact that the farmer may be indirectly harming wildlife, and that the statutory definition includes “harm” helps the agency’s cause but little. To analogize again to the smoking proposition, if Congress authorized the erection of “No Smoking” signs in public buildings and thereafter defined smoking to “include lighting, burning, puffing, inhaling, and otherwise harmfully employing the noxious nicotine-bearing tobacco products,” some zealous bureau might well attempt to define smoking to include chewing and spitting under the rubric of the “harmful use” in Congress’s definition of smoking. Perhaps some might think that reference to harm would cause the concept of smoking to include chewing. I do not think those creative regulators would be thinking reasonably if they should do so, nor do I think the regulators act reasonably in the present case.
As my colleague observes, there is an ancient “principle of statutory construction known as noscitur a sociis, a general word in a list should be interpreted narrowly ‘to avoid the giving of unintended breadth to the Acts of Congress.’” Mikva Op. at 10, quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). In the present statute, all the other terms among which “harm” finds itself keeping company relate to an act which a specifically acting human does to a specific individual representative of a wildlife species. In fact, they are the sorts of things an individual human commonly does when he intends to “take” an animal. Otherwise put, if I were intent on taking a rabbit, a squirrel, or a deer, as the term “take” is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, or collect”1 one of the target species.
All this falls neatly within a reasonable construction of “take,” just as puffing a pipe falls neatly within the definition of smoking, and I would not dare to do such in front of a “No Smoking” sign. However, I would think it most unreasonable if a regulator told me that I could not chew nicotine gum in front of the same sign because the agency had decided that it was harmful and therefore constituted smoking. It appears to me that the Fish and Wildlife Service has engaged in a similarly unreasonable expansion of terms in the present case.
I do not find the unreasonableness of the Service’s construction to be in any way alleviated by the Senate Committee Report stating 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, 93d Cong., 1st Sess. 7 (1973), (quoted by Mikva Op. at 9). Should one committee of the anti-smoking Congress have included in its discussion of the “No
I am bolstered in my conviction by another rule of statutory construction: that is, the presumption against surplusage. “[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackie v. Lanier Collection Agency, 486 U.S. 825, 837 (1988). The construction placed upon the word “harm” by the agency and adopted by the court today renders superfluous everything else in the definition of “take.” If “harm” means any “act which actually kills or injures wildlife,” including “habitat modification or degradation,” I can see no reason why Congress also included in the definition of “take” the terms “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect.”
Because I would void the regulation at this early stage, I would not reach the void-for-vagueness claim. I would observe, however, that I do not see how a definition as boundless as the agency conceives for the word “take” and the component “harm” of its definition could readily avoid being impermissibly vague.
I respectfully dissent.