1. Is habitat modification harming endangered species?

2. Does the Court’s interpretation mean no intent is required to violate ESA?

3. Did Congress intend to give the secretary authority to shut down an industry?

4. Is logging prevented now?

5. What ethical issues arise from this case?

Two U.S. agencies halted logging in the Pacific Northwest because it endangered the habitat of the northern spotted owl and the red-cockaded woodpecker, both endangered species. Sweet Home Chapter (respondents) is a group of landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest. They brought suit seeking clarification of the authority of the secretary of the interior and the director of the Fish and Wildlife Service (petitioners) to include habitation modification as a harm covered by the Endangered Species Act (ESA). The federal district court found for the secretary and director and held that they had the authority to protect the northern spotted owl through a halt to logging. The court of appeals reversed. Babbitt, the secretary of the interior, appealed.

JUDICIAL OPINION

STEVENS, J.… Section 9(a)(1) of the Endangered Species Act provides the following protection for endangered species: Except as provided in sections 1535(g) (2) and 1539 of this title, with respect to any endangered species offish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to—(B) take any such species within the United States or the territorial sea of the United States[.] 16 U.S.C. § 1538(a)(I). 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).

We assume respondents have no desire to harm either the red-cockaded woodpecker or the spotted owl; they merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA. On the other hand, we must assume arguendo that those activities will have the effect, even though unintended, of detrimentally changing the natural habitat of both listed species and that, as a consequence, members of those species will be killed or ……………