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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995)

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Continuing her service to the legal community, ESAblawg contributor Liz Batres submitted the following summary of Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687 (1995), as published by FindLaw

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Photo of Northern Spotted Owl by J&K Hollingsworth, U.S. Fish & Wildlife Service

To see the summary...

   Logging companies and others allegedly dependent on forest products brought a facial challenge to the FWS regulation defining “harm” within the meaning of the ESA section that makes it unlawful for any person to “take” protected species.  Specifically, the ESA defines “take” to include to “harm, and the regulation further defined “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife.”  Id. at 692 (“Their complaint alleged that application of the “harm” regulation to the red-cockaded woodpecker, and endangered species, and the northern spotted owl, a threatened species, had injured them economically.”).  The Court reviewed “whether the Secretary exceeded his authority under the [ESA] by promulgating that regulation.”  Id.  
       
   In the context of the motion for summary judgment, the Court had to assume that the Respondents’ logging “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.”  Id. at 696.  Analyzing whether the Secretary’s interpretation of the term “harm” is reasonable, the Court looked to “the text, structure, and legislative history of the ESA.”  Id. at 708.  

   Although Respondents asserted that “harm” should apply only to “direct applications of force against protected species,” the Court found that ordinary, dictionary definition of the term “naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.”  Id. at 697.  Next, the Court emphasized that the regulation is reasonable considering that Congress expressed a broad purpose of the ESA, intending “to provide comprehensive protection” to the listed species.  Id. at 699.  Furthermore, the Court noted that it “owe[d] some degree of deference to the Secretary’s reasonable interpretation” where the Secretary has considerable latitude in enforcing the ESA and given “the degree of regulatory expertise necessary to its enforcement.”  Id. at 703-04.  In sum, six of the Justices concluded “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.”  Id. at 708.  

OTHER RESOURCES:
  • Kenneth J. Plante & Andrew J. Baumann, Babbit v. Sweet Home Chapter of Communities for a Greater Oregon: Preserving the “Critical Link” Between Habitat Modification and the “Taking” of an Endangered Species, 20 Nova. L. Rev. 747 (1996)  
  • Articles and editorials including business and local perspectives by AllBusiness.com, HappinessOnline, the Congressional Research Service, and lawfirms