Air Date: Week of February 10, 1995

There is a case before the Supreme Court that could turn the Endangered Species Act upside down. At issue is the definition of the word "harm" and whether or not protection from harm extends to an animal's habitat. Habitat protection has been the basis for some of the most controversial endangered species regulations in the country. Jennifer Schmidt from member station KPLU in Seattle reports.

Transcript

CURWOOD: This is Living on Earth. I'm Steve Curwood. Changing the Endangered Species Act is high on the priority list of many members of Congress. In particular, they say they want to make the law easier on private property owners. But before Congress even picks up the issue, it could be decided by the Supreme Court. In a surprise decision last year, a Federal appeals court ruled that the Endangered Species Act does not protect crucial animal and plant habitat on private land. The Clinton Administration and environmental activists argue that it does, and they say that if the ruling is allowed to stand, many now protected species would go extinct. The Supreme Court will decide whose interpretation is correct. From Seattle, Jennifer Schmidt of member station KPLU reports.

SCHMIDT: The dispute really comes down to the definition of a single word. When Congress passed the Endangered Species Act back in 1973, it made it a crime to harm an animal protected by law. But Congress didn't explain exactly what it meant by harm. Did it mean that it was illegal to harm an animal only with direct force, say, by shooting, hunting, or trapping it? Or did Congress mean harm in a broader sense?

LAZARUS: By depriving the species of its habitat, of its home, of its food, and of its shelter.

SCHMIDT: That's Richard Lazarus, a professor of law at Washington University in St. Louis. He says the Administration's position is that harm means both these things. For nearly 20 years there's been a regulation on the books which states that it's illegal to injure or kill a protected animal directly, or indirectly, by destroying habitat on private property. But last year, an appellate court in Washington, DC, said the government's broad interpretation is wrong.

MURRAY: The Federal court in the District of Columbia has basically said that the Fish and Wildlife Service and the Department of the Interior have broken the law.

SCHMIDT: William Murray is with the American Forest and Paper Association. He says the government should have been particularly careful in crafting the regulation, because the stakes are so high.

MURRAY: You can put someone in jail for violating the Endangered Species Act by taking an endangered or threatened species. And here we have an agency with a concept that could put someone in jail, not even following what Congress originally intended.

SCHMIDT: The case against the government is being brought by a coalition of large and small timberland owners, individuals and communities in the Northwest and Southeast. It's come to be known as Sweet Home, after one member of the group, a small, grassroots timber organization from Sweet Home, Oregon. The appellate court's split ruling was a stunning victory for the Sweet Home challengers. The court said that language in the Endangered Species Act shows that Congress intended harm to mean only direct force and not habitat destruction. Law professor Richard Lazarus says the court based its ruling in part on the maxim, "A word is known by the company it keeps."

LAZARUS: The word "harm" appears in a definition of taking which includes several other terms. There's "harm," there's "wound," there's "kill," there's "injure." And according to the majority in the court, one has to read the word "harm" in that context. And here, the other terms suggest direct application of force, not indirect injuries.

SCHMIDT: Attorneys for the government maintain that the ruling is seriously flawed and threatens the entire Federal effort to protect endangered species. Environmental groups are echoing the government's concerns. Michael Bean is an attorney with the Environmental Defense Fund and a leading expert on the Endangered Species Act.

BEAN: Congress was clearly aware that the loss of habitat was the leading cause of endangerment of wildlife. Witness after witness at the Congressional hearings made the point that without protecting habitat one cannot expect to protect species and stave off extinction of species.

SCHMIDT: Supporters of the government's position also say the fact that Congress had several chances to clarify the law, but left the language unchanged, indicates it's been comfortable with how the Act's been interpreted. They point out that it's not unusual for Congress to focus on broad statements of principle, rather than the details. And when language is unclear, the courts have traditionally left it up to the Executive Branch to interpret it. Again, Richard Lazarus.

LAZARUS: If the Court concludes that the meaning of the language is ambiguous, then the Court is supposed to defer to the Agency's interpretation so long as it is reasonable.

SCHMIDT: But private property groups say the government's interpretation is not reasonable. Jennifer Deming is with the Pacific Legal Foundation. She says the current interpretation has led to serious abuses, such as the case of a California farmer whose tractor was seized because he plowed land that was home to 3 obscure species.

DEMING: Tipton Kangaroo Rat, the Blunt Nose Leopard Lizard, and the San Juaquin Kit Foxes. So he was criminally charged with violating the Endangered Species Act for plowing his property.

SCHMIDT: The criminal charges were subsequently dropped, but the government is continuing to pursue civil charges. Deming says any charges in this dispute are outrageous. Property rights advocates point out that language that would have explicitly protected habitat on private land was deleted from the original Endangered Species Act. Congress also included a provision in the Act that permits the government to buy land to preserve as critical habitat. Private property rights attorney Roger Marzulla says he believes Congress didn't want the government to have broad authority to restrict the use of private land.

MARZULLA: Congress had in mind certainly prohibiting individuals from directly injuring the animals. But at the same time, Congress felt that if private property was to be preserved in effect as a refuge for these endangered species, then the government had to acquire it and pay for it.

SCHMIDT: Ultimately, it's the Supreme Court that will decide which interpretation of the word "harm" is valid. Law professor Richard Lazarus says it's likely the court will uphold the government's position, but perhaps by only the narrowest of margins.

LAZARUS: This is a court with a huge middle to it. I mean there are a lot of justices here who go back and forth on these issues. So the government has a good chance of winning. But the government is going to have to do a lot of effective persuasion.

SCHMIDT: If the Administration fails to persuade the court, it will lose much of its power to protect endangered species. John Leshy is the general counsel for the Interior Department.

LESHY: It would be a major, major hole in the coverage of the Endangered Species Act, particularly for such things as migratory birds. Because what essentially the lower court said was, you know, you could have a stand of trees that had the only population in the world of a particular migratory bird, and when the birds flew away in the winter or the summer, you can cut all the trees down. And knowing that that's going to wipe out the species.

SCHMIDT: But the ruling will affect far more than just birds. Environmentalists point out that nearly half of all threatened and endangered species live on private lands. If private property owners are no longer obligated to help protect these animals, many of them could die out. In the end, this is likely to mean even more will have to be done to protect endangered species on public land, including additional restrictions on logging, grazing, mining, and other activities that take place on Federal lands across the nation. Oral arguments in the Sweet Home case are expected in April. The Supreme Court is likely to issue its ruling by summer. For Living on Earth, I'm Jennifer Schmidt in Seattle.