Government should stop redefining ‘take’ in Endangered Species Act enforcement
When federal agencies want to stretch their powers beyond what Congress authorized, they can get almost admirably creative. Case in point: For fifty years, the United States Fish & Wildlife Service and National Marine Fisheries Service have redefined what it means to “take” an endangered animal.
The Endangered Species Act authorizes the Fish & Wildlife Service and the National Marine Fisheries Service to list so-called “endangered” and “threatened” species. Once listed, a broad swath of prohibitions and burdens kick in. Central to this restrictive regime is the ESA’s prohibition on “taking” all endangered species, and some threatened species.
The ESA’s term “take” might seem vague. However, it has a well-settled meaning that has existed for hundreds of years in the common law that the United States inherited from England. Under this well-settled definition, to “take” is an affirmative action performed directly and intentionally toward a particular animal—like shooting it or trapping it. Unfortunately, in 1975—only two years after the ESA was passed—the Services departed from this traditional understanding of “take” and issued a rule radically expanding what it means to “take” an animal. Per this rule, known as the “harm” definition, to “take” an animal now covers activities that might incidentally affect a species by merely modifying habitats where it could exist.
Pursuant to this broad approach, the Services have aggressively exercised their authority to regulate, punish, and prohibit all manner of ordinary land-use activities on private property. Not only is this illegal, it has placed an intolerable burden on the regulated public. Take, for example, PLF client Mike Colosi, who was hit with $139,440 in permitting fees to build a single-family home adjacent to an alleged habitat for the threatened Florida scrub jay. Or PLF clients the Edwards family, who were restricted in their ability to graze cattle on their Kansas ranch by a rule prohibiting “take” of the lesser prairie-chicken. Most egregiously, the broad “harm” definition resulted in the 1995 criminal prosecution of a California bamboo farmer who was alleged to have modified a habitat for the Tipton kangaroo rat, during routine preparation of his farmlands for the planting season.
Fortunately, the Services are charting a new course. On April 17, the Services issued a proposal to rescind their “harm” definition and return to the traditional definition of “take.” PLF strongly supports this initiative and yesterday filed written comments on the proposal.
In its comments, PLF provides an analysis demonstrating that when Congress enacted the ESA, it intended the term “take” to bear its traditional common law meaning. The Services’ departure from that definition was illegal. PLF also explains how the Services’ “harm” definition imposes no meaningful limitation on the agencies’ authority to regulate private conduct—facilitating a burdensome and exploitative regulatory regime that gives private landowners no choice but to engage with the Services on the most ordinary of projects.
PLF applauds the Services’ initiative and is hopeful that these agencies will cease their unlawful enforcement of the ESA against innocent landowners engaging in ordinary activities.
