The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_859/94_859.zo

Text File | 1995-06-29 | 27.1 KB | 532 lines

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 94-859
--------
BRUCE BABBITT, SECRETARY OF THE INTERIOR,
et al., PETITIONERS v. SWEET HOME CHAPTER
OF COMMUNITIES FOR A GREAT
OREGON et al.
on writ of certiorari to the united states court
of appeals for the district of columbia circuit
[June 29, 1995]

  Justice Stevens delivered the opinion of the Court.
  The Endangered Species Act of 1973, 87 Stat. 884, 16
U. S. C. 1531 (1988 ed. and Supp. V) (ESA or Act),
contains a variety of protections designed to save from
extinction species that the Secretary of the Interior
designates as endangered or threatened.  Section 9 of
the Act makes it unlawful for any person to -take- any
endangered or threatened species.  The Secretary has
promulgated a regulation that defines the statute's
prohibition on takings to include -significant habitat
modification or degradation where it actually kills or
injures wildlife.-  This case presents the question
whether the Secretary exceeded his authority under the
Act by promulgating that regulation.

                            I
  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 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-
             .        .        .       .        .
      -(B) take any such species within the United
States or the territorial sea of the United States[.]-
16 U. S. C. 1538(a)(1).
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).
This regulation has been in place since 1975.
  A limitation on the 9 -take- prohibition appears in
10(a)(1)(B) of the Act, which Congress added by
amendment in 1982.  That section authorizes the
Secretary to grant a permit for any taking otherwise
prohibited by 9(a)(1)(B) -if such taking is incidental to,
and not the purpose of, the carrying out of an otherwise
lawful activity.-  16 U. S. C. 1539(a)(1)(B).
  In addition to the prohibition on takings, the Act
provides several other protections for endangered species.
Section 4, 16 U. S. C. 1533, commands the Secretary to
identify species of fish or wildlife that are in danger of
extinction and to publish from time to time lists of all
species he determines to be endangered or threatened.
Section 5, 16 U. S. C. 1534, authorizes the Secretary,
in cooperation with the States, see 16 U. S. C. 1535, to
acquire land to aid in preserving such species.  Section
7 requires federal agencies to ensure that none of their
activities, including the granting of licenses and permits,
will jeopardize the continued existence of endangered
species -or result in the destruction or adverse modifica-
tion of habitat of such species which is determined by
the Secretary . . . to be critical.-  16 U. S. C.
1536(a)(2).
  Respondents in this action are small landowners,
logging companies, and families dependent on the forest
products industries in the Pacific Northwest and in the
Southeast, and organizations that represent their
interests.  They brought this declaratory judgment action
against petitioners, the Secretary of the Interior and the
Director of the Fish and Wildlife Service, in the United
States District Court for the District of Columbia to
challenge the statutory validity of the Secretary's
regulation defining -harm,- particularly the inclusion of
habitat modification and degradation in the definition.
Respondents challenged the regulation on its face.  Their
complaint alleged that application of the -harm- regula-
tion to the red-cockaded woodpecker, an endangered
species, and the northern spotted owl, a threatened
species, had injured them economically.  App. 17-23.
  Respondents advanced three arguments to support
their submission that Congress did not intend the word
-take- in 9 to include habitat modification, as the
Secretary's -harm- regulation provides.  First, they
correctly noted that language in the Senate's original
version of the ESA would have defined -take- to include
-destruction, modification, or curtailment of [the] habitat
or range- of fish or wildlife, but the Senate deleted
that language from the bill before enacting it.  Second,
respondents argued that Congress intended the Act's
express authorization for the Federal Government to buy
private land in order to prevent habitat degradation in
5 to be the exclusive check against habitat modification
on private property.  Third, because the Senate added
the term -harm- to the definition of -take- in a floor
amendment without debate, respondents argued that the
court should not interpret the term so expansively as to
include habitat modification.
  The District Court considered and rejected each of
respondents' arguments, finding -that Congress intended
an expansive interpretation of the word `take,' an
interpretation that encompasses habitat modification.-
806 F. Supp. 279, 285 (1992).  The court noted that in
1982, when Congress was aware of a judicial decision
that had applied the Secretary's regulation, see Palila v.
Hawaii Dept. of Land and Natural Resources, 639 F. 2d
495 (CA9 1981) (Palila I), it amended the Act without
using the opportunity to change the definition of -take.-
806 F. Supp., at 284.  The court stated that, even had
it found the ESA -`silent or ambiguous'- as to the
authority for the Secretary's definition of -harm,- it
would nevertheless have upheld the regulation as a
reasonable interpretation of the statute.  Id., at 285
(quoting Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843 (1984)).  The
District Court therefore entered summary judgment for
petitioners and dismissed respondents' complaint.
  A divided panel of the Court of Appeals initially af-
firmed the judgment of the District Court.  1 F. 3d 1
(CADC 1993).  After granting a petition for rehearing,
however, the panel reversed.  17 F. 3d 1463 (CADC
1994).  Although acknowledging that -[t]he potential
breadth of the word `harm' is indisputable,- id., at 1464,
the majority concluded that the immediate statutory
context in which -harm- appeared counseled against a
broad reading; like the other words in the definition of
-take,- the word -harm- should be read as applying only
to -the perpetrator's direct application of force against
the animal taken . . . .  The forbidden acts fit, in
ordinary language, the basic model `A hit B.'-  Id., at
1465.  The majority based its reasoning on a canon of
statutory construction called noscitur a sociis, which
holds that a word is known by the company it keeps.
See Neal v. Clark, 95  U. S. 704, 708-709 (1878).
  The majority claimed support for its construction from
a decision of the Ninth Circuit that narrowly construed
the word -harass- in the Marine Mammal Protection Act,
16 U. S. C. 1372(a)(2)(A), see United States v. Hayashi,
5 F. 3d 1278, 1282 (1993); from the legislative history of
the ESA; from its view that Congress must not have
intended the purportedly broad curtailment of private
property rights that the Secretary's interpretation
permitted; and from the ESA's land acquisition provision
in 5 and restriction on federal agencies' activities
regarding habitat in 7, both of which the court saw as
evidence that Congress had not intended the 9 -take-
prohibition to reach habitat modification.  Most promi-
nently, the court performed a lengthy analysis of the
1982 amendment to 10 that provided for -incidental
take permits- and concluded that the amendment did
not change the meaning of the term -take- as defined in
the 1973 statute.
  Chief Judge Mikva, who had announced the panel's
original decision, dissented.  See 17 F. 3d, at 1473.  In
his view, a proper application of Chevron indicated that
the Secretary had reasonably defined -harm,- because
respondents had failed to show that Congress unambigu-
ously manifested its intent to exclude habitat modifica-
tion from the ambit of -take.-  Chief Judge Mikva found
the majority's reliance on noscitur a sociis inappropriate
in light of the statutory language and unnecessary in
light of the strong support in the legislative history for
the Secretary's interpretation.  He did not find the 1982
-incidental take permit- amendment alone sufficient to
vindicate the Secretary's definition of -harm,- but he
believed the amendment provided additional support for
that definition because it reflected Congress' view in
1982 that the definition was reasonable.
  The Court of Appeals' decision created a square
conflict with a 1988 decision of the Ninth Circuit that
had upheld the Secretary's definition of -harm.-  See
Palila v. Hawaii Dept. of Land and Natural Resources,
852 F. 2d 1106 (1988) (Palila II).  The Court of Appeals
neither cited nor distinguished Palila II, despite the
stark contrast between the Ninth Circuit's holding and
its own.  We granted certiorari to resolve the conflict.
513 U. S. ___ (1995).  Our consideration of the text and
structure of the Act, its legislative history, and the
significance of the 1982 amendment persuades us that
the Court of Appeals' judgment should be reversed.

                           II
  Because this case was decided on motions for summa-
ry judgment, we may appropriately make certain factual
assumptions in order to frame the legal issue.  First, 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 injured.  Under respondents' view of the law,
the Secretary's only means of forestalling that grave
result-even when the actor knows it is certain to
occur-is to use his 5 authority to purchase the lands
on which the survival of the species depends.  The
Secretary, on the other hand, submits that the 9
prohibition on takings, which Congress defined to
include -harm,- places on respondents a duty to avoid
harm that habitat alteration will cause the birds unless
respondents first obtain a permit pursuant to 10.
  The text of the Act provides three reasons for conclud-
ing that the Secretary's interpretation is reasonable.
First, an ordinary understanding of the word -harm-
supports it.  The dictionary definition of the verb form
of -harm- is -to cause hurt or damage to: injure.-
Webster's Third New International Dictionary 1034
(1966).  In the context of the ESA, that definition
naturally encompasses habitat modification that results
in actual injury or death to members of an endangered
or threatened species.
  Respondents argue that the Secretary should have
limited the purview of -harm- to direct applications of
force against protected species, but the dictionary
definition does not include the word -directly- or suggest
in any way that only direct or willful action that leads
to injury constitutes -harm.-  Moreover, unless the
statutory term -harm- encompasses indirect as well as
direct injuries, the word has no meaning that does not
duplicate the meaning of other words that 3 uses to
define -take.-  A reluctance to treat statutory terms as
surplusage supports the reasonableness of the
Secretary's interpretation.  See, e.g., Mackey v. Lanier
Collection Agency & Service, Inc., 486 U. S. 825, 837,
and n. 11 (1988).
  Second, the broad purpose of the ESA supports the
Secretary's decision to extend protection against activi-
ties that cause the precise harms Congress enacted the
statute to avoid.  In TVA v. Hill, 437 U. S. 153 (1978),
we described the Act as -the most comprehensive
legislation for the preservation of endangered species
ever enacted by any nation.-  Id., at 180.  Whereas
predecessor statutes enacted in 1966 and 1969 had not
contained any sweeping prohibition against the taking of
endangered species except on federal lands, see id., at
175, the 1973 Act applied to all land in the United
States and to the Nation's territorial seas.  As stated in
2 of the Act, among its central purposes is -to provide
a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved
. . . .-  16 U. S. C. 1531(b).
  In Hill, we construed 7 as precluding the completion
of the Tellico Dam because of its predicted impact on
the survival of the snail darter.  See 437 U. S., at 193.
Both our holding and the language in our opinion
stressed the importance of the statutory policy.  -The
plain intent of Congress in enacting this statute,- we
recognized, -was to halt and reverse the trend toward
species extinction, whatever the cost.  This is reflected
not only in the stated policies of the Act, but in literally
every section of the statute.-  Id., at 184.  Although the
9 -take- prohibition was not at issue in Hill, we took
note of that prohibition, placing particular emphasis on
the Secretary's inclusion of habitat modification in his
definition of -harm.-  In light of that provision for
habitat protection, we could -not understand how TVA
intends to operate Tellico Dam without `harming' the
snail darter.-  Id., at 184, n. 30.  Congress' intent to
provide comprehensive protection for endangered and
threatened species supports the permissibility of the
Secretary's -harm- regulation.
  Respondents advance strong arguments that activities
that cause minimal or unforeseeable harm will not
violate the Act as construed in the -harm- regulation.
Respondents, however, present a facial challenge to the
regulation.  Cf. Anderson v. Edwards, 514 U. S. ___, ___,
n. 6 (1995) (slip op., at 11); INS v. National Center for
Immigrants' Rights, Inc., 502 U. S. 183, 188 (1991).
Thus, they ask us to invalidate the Secretary's under-
standing of -harm- in every circumstance, even when an
actor knows that an activity, such as draining a pond,
would actually result in the extinction of a listed species
by destroying its habitat.  Given Congress' clear expres-
sion of the ESA's broad purpose to protect endangered
and threatened wildlife, the Secretary's definition of
-harm- is reasonable.
  Third, the fact that Congress in 1982 authorized the
Secretary to issue permits for takings that 9(a)(1)(B)
would otherwise prohibit, -if such taking is incidental to,
and not the purpose of, the carrying out of an otherwise
lawful activity,- 16 U. S. C. 1539(a)(1)(B), strongly
suggests that Congress understood 9(a)(1)(B) to prohibit
indirect as well as deliberate takings.  Cf. NLRB v. Bell
Aerospace Co. of Textron, Inc., 416 U. S. 267, 274-275
(1974).  The permit process requires the applicant to
prepare a -conservation plan- that specifies how he
intends to -minimize and mitigate- the -impact- of his
activity on endangered and threatened species, 16
U. S. C. 1539(a)(2)(A), making clear that Congress had
in mind foreseeable rather than merely accidental effects
on listed species.  No one could seriously request an
-incidental- take permit to avert 9 liability for direct,
deliberate action against a member of an endangered or
threatened species, but respondents would read -harm-
so narrowly that the permit procedure would have little
more than that absurd purpose.  -When Congress acts
to amend a statute, we presume it intends its amend-
ment to have real and substantial effect.-  Stone v. INS,
514 U. S. ___, ___ (1995) (slip op., at 10).  Congress'
addition of the 10 permit provision supports the
Secretary's conclusion that activities not intended to
harm an endangered species, such as habitat modifica-
tion, may constitute unlawful takings under the ESA
unless the Secretary permits them.
  The Court of Appeals made three errors in asserting
that -harm- must refer to a direct application of force
because the words around it do.  First, the court's
premise was flawed.  Several of the words that accompa-
ny -harm- in the 3 definition of -take,- especially
-harass,- -pursue,- -wound,- and -kill,- refer to actions
or effects that do not require direct applications of force.
Second, to the extent the court read a requirement of
intent or purpose into the words used to define -take,-
it ignored 9's express provision that a -knowing- action
is enough to violate the Act.  Third, the court employed
noscitur a sociis to give -harm- essentially the same
function as other words in the definition, thereby
denying it independent meaning.  The canon, to the
contrary, counsels that a word -gathers meaning from
the words around it.-  Jarecki v. G. D. Searle & Co.,
367 U. S. 303, 307 (1961).  The statutory context of
-harm- suggests that Congress meant that term to serve
a particular function in the ESA, consistent with but
distinct from the functions of the other verbs used to
define -take.-  The Secretary's interpretation of -harm-
to include indirectly injuring endangered animals
through habitat modification permissibly interprets
-harm- to have -a character of its own not to be sub-
merged by its association.-  Russell Motor Car Co. v.
United States, 261 U. S. 514, 519 (1923).
  Nor does the Act's inclusion of the 5 land acquisition
authority and the 7 directive to federal agencies to
avoid destruction or adverse modification of critical
habitat alter our conclusion.  Respondents' argument
that the Government lacks any incentive to purchase
land under 5 when it can simply prohibit takings under
9 ignores the practical considerations that attend
enforcement of the ESA.  Purchasing habitat lands may
well cost the Government less in many circumstances
than pursuing civil or criminal penalties.  In addition,
the 5 procedure allows for protection of habitat before
the seller's activity has harmed any endangered animal,
whereas the Government cannot enforce the 9 prohibi-
tion until an animal has actually been killed or injured.
The Secretary may also find the 5 authority useful for
preventing modification of land that is not yet but may
in the future become habitat for an endangered or
threatened species.  The 7 directive applies only to the
Federal Government, whereas the 9 prohibition applies
to -any person.-  Section 7 imposes a broad, affirmative
duty to avoid adverse habitat modifications that 9 does
not replicate, and 7 does not limit its admonition to
habitat modification that -actually kills or injures
wildlife.-  Conversely, 7 contains limitations that 9
does not, applying only to actions -likely to jeopardize
the continued existence of any endangered species or
threatened species,- 16 U. S. C. 1536(a)(2), and to
modifications of habitat that has been designated
-critical- pursuant to 4, 16 U. S. C. 1533(b)(2).  Any
overlap that 5 or 7 may have with 9 in particular
cases is unexceptional, see, e.g., Russello v. United
States, 464 U. S. 16, 24, and n. 2 (1983), and simply
reflects the broad purpose of the Act set out in 2 and
acknowledged in TVA v. Hill.
  We need not decide whether the statutory definition of
-take- compels the Secretary's interpretation of -harm,-
because our conclusions that Congress did not unambigu-
ously manifest its intent to adopt respondents' view and
that the Secretary's interpretation is reasonable suffice
to decide this case.  See generally Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U. S. 837
(1984).  The latitude the ESA gives the Secretary in
enforcing the statute, together with the degree of
regulatory expertise necessary to its enforcement,
establishes that we owe some degree of deference to the
Secretary's reasonable interpretation.  See Breyer,
Judicial Review of Questions of Law and Policy, 38
Admin. L. Rev. 363, 373 (1986).

                           III
  Our conclusion that the Secretary's definition of
-harm- rests on a permissible construction of the ESA
gains further support from the legislative history of the
statute.  The Committee Reports accompanying the bills
that became the ESA do not specifically discuss the
meaning of -harm,- but they make clear that Congress
intended -take- to apply broadly to cover indirect as well
as purposeful actions.  The Senate Report stressed 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, p. 7 (1973).  The House Report stated that
-the broadest possible terms- were used to define
restrictions on takings.  H. R. Rep. No. 93-412, p. 15
(1973).  The House Report underscored the breadth of
the -take- definition by noting that it included -harass-
ment, whether intentional or not.- Id., at 11 (emphasis
added).  The Report explained that the definition -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.-  Ibid.  These
comments, ignored in the dissent's welcome but selective
foray into legislative history, see post, at 14-16, support
the Secretary's interpretation that the term -take- in 9
reached far more than the deliberate actions of hunters
and trappers.
  Two endangered species bills, S. 1592 and S. 1983,
were introduced in the Senate and referred to the
Commerce Committee.  Neither bill included the word
-harm- in its definition of -take,- although the defini-
tions otherwise closely resembled the one that appeared
in the bill as ultimately enacted.  See Hearings on
S. 1592 and S. 1983 before the Subcommittee on
Environment of the Senate Committee on Commerce,
93d Cong., 1st Sess., pp. 7, 27 (1973) (hereinafter Hear-
ings).  Senator Tunney, the floor manager of the bill in
the Senate, subsequently introduced a floor amendment
that added -harm- to the definition, noting that this and
accompanying amendments would -help to achieve the
purposes of the bill.-  119 Cong. Rec. 25683 (July 24,
1973).  Respondents argue that the lack of debate about
the amendment that added -harm- counsels in favor of
a narrow interpretation.  We disagree.  An obviously
broad word that the Senate went out of its way to add
to an important statutory definition is precisely the sort
of provision that deserves a respectful reading.
  The definition of -take- that originally appeared in S.
1983 differed from the definition as ultimately enacted
in one other significant respect: It included -the destruc-
tion, modification, or curtailment of [the] habitat or
range- of fish and wildlife.  Hearings, at 27.  Respond-
ents make much of the fact that the Commerce Commit-
tee removed this phrase from the -take- definition before
S. 1983 went to the floor.  See 119 Cong. Rec. 25663
(1973).  We do not find that fact especially significant.
The legislative materials contain no indication why the
habitat protection provision was deleted.  That provision
differed greatly from the regulation at issue today.  Most
notably, the habitat protection in S. 1983 would have
applied far more broadly than the regulation does
because it made adverse habitat modification a categori-
cal violation of the -take- prohibition, unbounded by the
regulation's limitation to habitat modifications that
actually kill or injure wildlife.  The S. 1983 language
also failed to qualify -modification- with the regulation's
limiting adjective -significant.-  We do not believe the
Senate's unelaborated disavowal of the provision in S.
1983 undermines the reasonableness of the more
moderate habitat protection in the Secretary's -harm-
regulation.
  The history of the 1982 amendment that gave the
Secretary authority to grant permits for -incidental-
takings provides further support for his reading of the
Act.  The House Report expressly states that -[b]y use
of the word `incidental' the Committee intends to cover
situations in which it is known that a taking will occur
if the other activity is engaged in but such taking is
incidental to, and not the purpose of, the activity.-
H. R. Rep. No. 97-567, p. 31 (1982).  This reference to
the foreseeability of incidental takings undermines
respondents' argument that the 1982 amendment covered
only accidental killings of endangered and threatened
animals that might occur in the course of hunting or
trapping other animals.  Indeed, Congress had habitat
modification directly in mind: both the Senate Report
and the House Conference Report identified as the model
for the permit process a cooperative state-federal
response to a case in California where a development
project threatened incidental harm to a species of
endangered butterfly by modification of its habitat.  See
S. Rep. No. 97-418, p. 10 (1982); H. R. Conf. Rep. No.
97-835, pp. 30-32 (1982).  Thus, Congress in 1982
focused squarely on the aspect of the -harm- regulation
at issue in this litigation.  Congress' implementation of
a permit program is consistent with the Secretary's
interpretation of the term -harm.-

                           IV
  When it enacted the ESA, Congress delegated broad
administrative and interpretive power to the Secretary.
See 16 U. S. C. 1533, 1540(f).  The task of defining
and listing endangered and threatened species requires
an expertise and attention to detail that exceeds the
normal province of Congress.  Fashioning appropriate
standards for issuing permits under 10 for takings that
would otherwise violate 9 necessarily requires the
exercise of broad discretion.  The proper interpretation
of a term such as -harm- involves a complex policy
choice.  When Congress has entrusted the Secretary with
broad discretion, we are especially reluctant to substitute
our views of wise policy for his.  See Chevron, 467 U. S.,
at 865-866.  In this case, that reluctance accords with
our conclusion, based on the text, structure, and legisla-
tive history of the ESA, 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.-
  In the elaboration and enforcement of the ESA, the
Secretary and all persons who must comply with the law
will confront difficult questions of proximity and degree;
for, as all recognize, the Act encompasses a vast range
of economic and social enterprises and endeavors.  These
questions must be addressed in the usual course of the
law, through case-by-case resolution and adjudication.
  The judgment of the Court of Appeals is reversed.

                                      It is so ordered.