Amicus Curiae Brief — Babbitt v. Sweet Home Chapter, Communities for Great Ore.

No. 94-859

In the Pea pe Oe

Supreme Court of the Anited States

October Term, 1994

Bruce Babbitt, Secretary of the Interior, et al.,

Petitioners,

Vv.

Sweet Home Chapter of Communities

for a Great Oregon, et al.,

Respondents.

On Writ of Certiorari To The United States Court Of

Appeals For The District Of Columbia Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION,

ALLIED EDUCATIONAL FOUNDATION AND

FAIRNESS TO LAND OWNERS COMMITTEE AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Daniel J. Popeo Albert Gidari™

Paul D. Kamenar John Dentler

Washington Legal Foundation PERKINS COIE

2009 Massachusetts Ave. N.W. 1201 Third Avenue, 40th Floor

Washington, D.C. 20036 Seattle, WA 98101-3099

(202) 588-0302 (206) 583-8888

Attorneys for Amici Curiae

March 24, 1995 “Counsel of Record

aBCD Legal Printers. Seattle. Washington

TABLE OF CONTENTS

COO O EEE EEE HEE HEHEHE HEHEHE HEED

I. THE RULE OF LENITY GOVERNS REVIEW

OF STATUTES OF CRIMINAL APPLICATION

AND REGULATIONS PROMULGATED

A. Harm by Habitat Modification Has Been,

and Will Continue To Be, Prosecuted as a

ae iakevanhenebesroes

B. The Harm Regulation Has Been Applied

Broadly by Petitioners, Reaching Many

Types of Ordinary Land Use Activities,

Treating Them as Unlawful Habitat Modifi-

cation.

POORER E EEE

-C. The Harm Regulation Fails to Give Fair

Warning of the Many Types of Ordinary

Land Uses That May Be Treated as Unlaw-

ful Habitat Modifications. ....................:::::0060.

Il. CHEVRON DOES NOT GOVERN REVIEW OF

STATUTES OF CRIMINAL APPLICATION;

CONGRESS DID NOT DELEGATE THE

POWER TO DEFINE A CRIMINAL OFFENSE

OF HABITAT MODIFICATION TO FWS ..............

CONCLUSION

1]

18

22

TABLE OF AUTHORITIES

Page

Cases

Adamo Wrecking Co. v. United States, 434

ER SP a CI cccsinsitesessonelenneeadaniabaplnaiamemuandel 23

Bell v. United States, 349 U.S. 81 (1955)..0....0000cccccceeeeeeee. 26

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984)... $. 7, a7

Connally v. General Constr. Co., 269 U.S.

IE oo casincdcc tine ae 25

Conoco, Inc. v. Skinner, 970 F.2d 1206 (3d

rc scsscncicasnscsscisvies cestnlaeehabceaclamenlinieenaiasaiataaaia mae 29

Crandon v. United States, 494 U.S. 152

CD iicciiscshaicittsisiatepbesddmndcanaataeisdikeeat eee eae 10

Custis v. United States, 114 S. Ct. 1732

CED siciscsssissaittiesescntedaisastdeacmmmacadaa aman 26

Dunn v. United States, 442 U.S. 100 (1979)...........00cccccceeee. 9

Evans v. United States, 112 S. Ct. 1881

CE nits doscccnasaiacienipctaaanndaceeaee cei baaadapeiancciaai cui 26

J.W. Hampton, Jr. & Co. v. United States, 276

SI Fe ED iennssecadesdabidhdaaiinampeamplcaeninaadaadgaeaanne 29

Kolender v. Lawson, 461 U.S. 352 (1983)....00.0....0.000cccece 5

Liparota v. United States, 471 U.S. 419

ERO Dx:ccvininn sonicsnsestiidecaunessindeanina ede ane 10, 28

ill

Ratzlaf v. United States, 114 S. Ct. 655 (1994) ...0..000.... 9, 25

Regents of Univ. of Cal. v. Public Employment

Relations Bd., 485 U.S. 589 (1988)...............ccceeeeeees 28

Rogers v. United States, 367 F.2d 998 (8th

Cir. 1966), cert. denied, 386 U.S. 943

decrees tials Mtbdaddenetdonbebinineneccnseuadveeveansss 26

Sammons v. Commissioner, 838 F.2d 330 (9th

SE BOREAS SE OO 12

Sweet Home Chapter of Communities for a

Great Or. v. Babbitt, 1 F.3d 1 (D.C. Cir.

ee ATES, Sicha ear nencacardincesiiedsivecnsccssvens 5, 30

Sweet Home Chapter of Communities for a

Great Or. v. Babbitt, 17 F.3d 1463 (D.C.

a ES Sete eR DSS Se Shanna ae

Sweet Home Chapter of Communities for a

Great Or. v. Babbitt, 30 F.3d 190 (D.C. Cir.

cain doseses\nceene 8.17

Sweet Home Chapter of Communities for a

Great Or. v. Lujan, 806 F. Supp. 279

ir uiiintecssnctasscssecssencsceecens 4,5

Sweet Home Chapter of Communities for a

Great Or. v. Turner, No. 91-2218 (D.D.C.

Thigpen v. Roberts, 468 U.S. 26 (1984) ...........0.0:cceceeeeeeees 8

United States v. 2,507 Live Canary Winged

Parakeets, 689 F. Supp. 1106 (S.D. Fla.

eos as abnduyicssiedicnisbedarssenannavns 12

Iv

United States v. Billie, 667 F. Supp. 1485

Te TOI scl cedncesesics coves ocivseessicnsiosen 13

United States v. Borowski, 977 F.2d 27 (1st

le Ns diisns a tiospahc treed aaa bare eaetitndcisaewinieenie 29

United States v. City of Rancho Palos Verdes,

EE Fe Ft PN evict ecissidcssangnssvnecasssosaacceens 14

United States v. Corbin Farm Serv., 444 F.

Supp. 510 (E.D. Cal.), aff'd, 578 F.2d 259

I ak data re ate de nies aknsisseanntnnsns 26

United States v. Doyle, 786 F.2d 1440 (9th |

Cir.), cert. denied, 497 U.S. 984 (1986) ............ccceccece. 13

United States v. Dunn et al., Crim. No. 92- |

117-COL (JRE) (M.D. Ga., filed Jan. 28,

ear Tocca Dead anddasctede evict ciakaveneaeinwesciaund 16 :

United States v. Equity Corp., Cr. 75-51

Me I oe enh cdateha endeapce sis ccevkansnivavors 26

United States v. FMC Corp., 572 F.2d 902 (2d

2 EER Ty a ror SANS 2-0: Oh re EEE 26

United States v. Gradwell, 243 U.S. 476

SEER 0 eR fe ek 26

United States v. Granderson, 114 S. Ct. 1259

PES ORR ett testa oa 10

United States v. Kozminski, 487 U.S. 931

Sac OPN A Se NS es Pale De ere a ce EN eee 10

United States v. New York Tel. Co., 434 U.S.

ARON R TE sR eNO hoy Ae Se De eae 8

United States v. Nguyen, 916 F.2d 1016 (Sth

Re ee citesrenccisstisenesticidig mand Aiccaniubsescnnncetosateeniadenenieds 13

a

United States v. Plaza Health Labs., Inc., 3

F.3d 643 (2d Cir. 1993), cert. denied, 114

Bs Rr arcs des tsdincrie cag iariccdaacosscwmsnnis

United States v. Robel, 389 U.S. 258 (1967)................:.0..

United States v. St. Onge, 676 F. Supp. 1044

i s S aiesesera secs ss nich en tabs seen ctasiess Seances 4,

United States v. Stuarco Oil Co., 73-Cr-129

A PN a chic nantcaerecioneneiinnianandincemencets

United States v. Thompson/Center Arms Co.,

119 L. Ed. 2d 308, 112 S. Ct. 2102 (1992)............. 8, 9,

United States v. Touby, 500 U.S. 160 (1991)... ee.

United States v. Tran, 955 F.2d 288 (Sth Cir.),

GOFE, GAIOG, TES GGA. BAT CEPI osccscscssicteccvcescsecscessce:

United States v. Wagner, 29 F.3d 264 (7th Cir.

POPU Giil ois tiasics deeb tral saan pu eh saleeced takers Sidin eaiabvsdbciasFousaane

United States v. Wang Lin Co., CR-F-94-5041

SSH GE.D. Cal., Glad Jan. 12, 199S).......0:..00cccccccsecscoeesee

United States v. Wang Lin Farms, Inc. &

Taung Ming-Lin, CR-F-94-5041 SSH (E.D.

i Oe sila aac is een nenecscasexesasessxonceicani

United States v. Wang Lin Farms, Inc. &

Taung Ming-Lin, CR-F-94-5041 SSH (E.D.

Ce riers ce eee

United States v. Weitzenhoff, 35 F.3d 1275

(9th Cir. 1993), cert. denied, 1995 U.S.

REE TFT Ae Ee BEE iieniactomonenos

United States v. White, 888 F.2d 490 (7th Cir.

vi

United States v. Wiltberger, 18 U.S.

i ccs vksonsunesatcnrusakonspalarcaramiean 9

Williams v. United States, 458 U.S. 279

ANE ia cued ssctc ie 1s dav hacemagnaeci aasiahaciovowissbinds eieeiabann 10

Statutes

oS a Be tL | ee 2

20 di. sess nun ncuonsactioupheineidaniswindorentionsas 14

a ois a lcas csputvnvescticensoansabicassseratbonsavinsecan 3

ao 5s Sas desseaeh eegancndsbenia 16

Ie AE BO IRIMG GD, v5 cssccocessenstssevnbsacdexnccvecseniorwcens 17

16 U.S.C. § 1536(aX(2) .............000..000. hia saan baeaamesiall 16

Pe POI oi sicsecsssseteiconsncséasnyscnnietnacandedusions 3

a 25 ndcincy nadpuannnorvensradasaueuvaowesencenon 13 |

WUE, © USO ncaa cnecccsccccesccsccsescecccsrecsesce 1

a 5s nied sane tan huctensionconaedeapionee 13

Ae SUID 000, oovcstcscvesanvecceveverdevuvessovneaessesen 12

Me PMD ID sc icscvnssscedanvevenusutvansencrcasesivediion 12

A a ocsssdeiusicesnacadinesnnsindernvasoucecossines 12

a Oe er og addy ney cc evineseviviniasonasassraveeoaastoneuevaien 12

a a sn en sucesinen eucenannnemabsaansaconsvadoons 12

Other Authorities

3 Sutherland Statutory Construction §§ 59.02-

03 (Norman J. Singer, ed., Sth ed. 1992) .............een. 9

vii

Albert Gidari, The Endangered Species Act:

Impact of Section 9 on Private Landowners,

nT Bis DE aca cale ascitic ries eaten in cess cdsdcaiens a

Black’s Law Dictionary 1196 (Sth ed. 1979) ............cccceeeee. 9

Chicago Tribune, May 30, 1994, N11... 16, 17

Criminal Fines Improvements Act of 1987 ...........0....000.000.. 12

Daniel A. Per-Lee, annot., Supreme Court’s

Views as to the “Rule of Lenity” in the

Construction of Criminal Statutes, 62 L.

pm ge i . . : n 9,10

Draft Endangered Species Consultation Hand-

book, U.S. Department of Interior, U.S.

Fish & Wildlife Service 4-43 (Nov. 1994)... 23

Endangered Species Act: Information on

Species Protection on Nonfederal Lands,

CG | | SE re 14, 24

H.R. Conf. Rep. No. 1804, 95th Cong. 2d

Sess. 26, reprinted in 1978 U.S.C.C.A.N.

I ha aac scesdonsibaxsawiesianncenansi 13

BOG Pmepeees Temees, Faby 1, TODS... ...ccccccccccccsccsccccees. 18

Los Angeles Times, June 10, 1994 000.0... ccc ee eeeee es 18

Preliminary Draft Handbook for Habitat Con-

servation Planning and Incidental Take

Permit Processing, U.S. Department of the

Interior, U.S. Fish & Wildlife Service 80

I rc ans ania oivabuasiloos 4

Vill

Proposed Designation of Critical Habitat for

the Pacific Coast Population of the Western

Snowy Plover, 60 Fed. Reg. 11,768

Scie BA etstranickinscpectoaess See res ee aires ct detans dake desees 24

Proposed Special Rule for the Conservation of

the Northern Spotted Owl on Non-Federal

Lands, 60 Fed. Reg. 9,484 (Feb. 17, 1995) ......ccccccceseeee 20

Pub. L. No. 100-478, § 1001, 102 Stat. 2306

I oe yea et Ae ee 14

Pub. L. No. 95-632, § 6, 92 Stat. 3751 (1978) .......ceccecesee: 13

Pub. L. No. 93-205, 87 Stat. 884 (1973) ....ccccccccccecsesseeseeeeen 2

Reauthorization of the Endangered Species

Act Focusing on Conservation of Private

Lands: Hearings Before the Senate Com-

mittee on Environment and Public Works,

Subcommittee on Clean Water, Fisheries

and Wildlife, 103d Cong., 2d Sess. (July 19,

PO sshckei ch tis icicsdicecindiasscitataaiatbiaadiavisibesivia vansivenrnsnees 22

Robert D. Thornton, Zakings Under the En-

dangered Species Act Section 9, 4 Nat. Re-

sources & Env’t 50-51 (Spring 1990)... 15

Sacramento Bee, June 27, 1994........ Ie aie cous ducesiasecbessaieied 18

The American Heritage Dictionary 649 (2d

ES ace Coancsanddensviccesesecinendeeas +

pi) Ee A | __. Se ene 18

Te I i I, I BI aia dvsecssrcccncnsscnccecceccaveesccacers 18

The Fresno Bee, March 7, 1995 .00..0.......ccc ccc ccccccceeeceeeeees 18

The San Francisco Chronicle, Jan. 19, 1995.........0000.ccccc.. 18

se

ix

U.S. Fish and Wildlife Service, Region 1, Pro-

cedures Leading to Endangered Species Act

Compliance for the Northern Spotted Owl

ee ay eee a, 15, 19

Rules

PR a hacia nhl cic nes Ge 2 57

Regulations

40 Fed. Reg. 28,712 (1975)...00.ooooccccecccceccccecececeececeececeeeee. 21

40 Fed. Reg. 44,412 (1975).....0.oocccccccececcececeeeeeeececc ce. 22

53 Fed. Reg. 25,608 (Jul. 8, 1988) o.oo. oooccccccecccececeeee. 16

55 Fed. Reg. 26,114 (June 26, 1990)... 19, 25

59 Fed. Reg. 34,272 (July 1, 1994)... ooo oocccocococcececcceceee. 24

59 Fed. Reg. 60,252 (Nov. 22, 1994)... oocceccceccc. 25

59 Fed. Reg. 65,782-83 (Dec. 21, oR SEEN tea 4

In the

Supreme Court of the United States

October Term, 1994

No. 94-859

BRUCE BABBITT , SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

V.

SWEET HOME CHAPTER OF COMMUNITIES

FOR A GREAT OREGON, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the District Of Columbia Circuit

BRIEF OF WASHINGTON LEGAL

FOUNDATION, ALLIED EDUCATIONAL

FOUNDATION AND FAIRNESS TO LAND

OWNERS COMMITTEE AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

INTERESTS OF AMICI

The Washington Legal Foundation (“WLF”) is a nonprofit

public interest law and policy center based in Washington,

D.C., with over 100,000 supporters nationwide.! WLF regu-

larly appears before federal and state courts promoting eco-

1 By letters filed with the Clerk of the Court, the parties have con-

sented to the filing of this brief.

nomic liberty, free enterprise principles and limited and ac-

countable government. WLF has devoted substantial re-

sources to litigating issues where liberty, both individual and

economic, is at risk from the criminalization of conduct not

traditionally thought to be unlawful, especially in the envi-

ronmental area. The Allied Educational Foundation (“AEF”)

is a nonprofit charitable and education foundation based in

Englewood, New Jersey. Founded in 1964, AEF is dedicated

to promoting education in law and public policy. The Fairness

to Land Owners Committee (“FLOC”) is a Maryland-based

national organization with over 8,000 members who are small

property owners faced with confiscatory and arbitrary land

use regulations involving wetlands, endangered species and

similar laws. Both AEF and FLOC have appeared with WLF

in land use cases before this Court. See, e.g., Lucas v. South

Carolina Coastal Council, 112 S. Ct. 2887 (1992); Dolan v. |

City of Tigard, 114 S. Ct. 2309 (1994). |

Pe ey

Oe ee Se eee

SUMMARY OF ARGUMENT

Petitioners plead for deference to their broad interpretation

of Section9 of the Endangered Species Act of 1973 (the

“ESA”), Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified

as amended at 16 U.S.C. §§ 1531-1544 (1988)), which makes

it unlawful to “take” an endangered species. Respondents

urge that Congress did not intend that the term “harm” em-

bedded in the statutory definition of “take” be expanded to

make unlawful “habitat modification” associated with such

traditional land uses as farming or forestry. Amici urge that

the Rule of Lenity — which states that any ambiguity in a

statute or regulation with criminal application should be re-

solved in favor of defendants — governs this case if this

Court finds the statute ambiguous.

STATEMENT OF THE CASE

Amici recapitulate the procedural history of this case only

to demonstrate that concerns underlying the Rule of Lenity —

such as fair warning of prohibited conduct and the unintended

criminalization of day-to-day activities — infuse this case

from start to finish. If none of the courts or judges below that

addressed the issue could agree on whether the ESA prohibits

habitat modification, what notice do innocent landowners

have of the conduct proscribed?

Section 9 of the ESA makes it unlawful for any person to

“take” any listed species of fish or wildlife. 16 U.S.C.

§ 1538(a)(1)(B). Section9 contains no prohibition on the

modification of the habitat of threatened or endangered spe-

cies and the term “take” is defined elsewhere in the ESA only

to mean

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).

Despite the absence of any reference to habitat modifica-

tion in the definition of “take,” Petitioners, by regulation,

defined the term “harm” in the definition of “take” in its

broadest possible terms as follows:

Harm in the definition of “take” in the [ESA]

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, includ-

ing breeding, feeding or sheltering.

50 CFR. § 173.

With the force of this sweeping definition behind it, Peti-

tioners have used the harm regulation to stymie a variety of

lawful land uses such as residential development, timber har-

vest and farming and to threaten private landowners with

criminal prosecution for taking a listed species if they engage

in “modification” of its “habitat.” See Albert Gidari, The

Endangered Species Act: Impact of Section9 on Private

Landowners, 24 Envtl. L. 419 (1994).

In the words of Petitioners, the “harm” form of a prohib-

ited “take” includes “unintentional destruction of a listed

species or its habitat by heavy equipment during home con-

struction or land use activities.” See Preliminary Draft Hand-

book for Habitat Conservation Planning and Incidental Take

Permit Processing, U.S. Department of the Interior, U.S. Fish

& Wildlife Service 80 (Sept. 15, 1994) (availability announced |

in 59 Fed. Reg. 65,782-83 (Dec. 21, 1994)) (emphasis in |

original). Indeed, to Petitioners, the “harm” form of prohib- |

ited “take” not only can be unintentional, it can be

“inadvertent.” Jd. at 4.

Respondents “are various organizations, businesses and

individuals, who depend directly or indirectly on the timber

industry in the Pacific Northwest and in the Southeast for

their livelihood.” Sweet Home Chapter of Communities for a

Great Or. v. Lujan, 806 F. Supp. 279, 281 (D.D.C. 1992).

They brought this citizen’s suit under Section 11(g) of the

ESA to challenge the agency’s sweeping definition of

“harm,” a definition that puts innocent landowners at risk of

criminal prosecution.

2 “Inadvertent,” of course, means “accidental.” The American

Heritage Dictionary 649 (2d college ed., 1985). Petitioners’ interpreta-

tion reads out of the ESA the requirement that “take” be knowing, 16

U.S.C. § 1540(b), and ignores that accident is a defense to a general

intent crime. See, e.g., United States v. St. Onge, 676 F. Supp. 1044,

1045 (D. Mont. 1988) (accident as defense to charge of shooting listed

- species). See infra at 12-13. More to the point here, innocent landown-

ers are at substantial risk of running afoul of the ESA under such a strict

liability interpretation of the statute.

The district court sustained the harm regulation, holding

that take “encompasses habitat modification.” Jd. at 285. The

court noted that even if the ESA was silent or ambiguous, it

would uphold the regulation as a “reasonable interpretation of

the statute.” Jd. (citing Chevron, U.S.A., Inc. v. Natural Re-

sources Defense Council, 467 U.S. 837, 843 (1984)).

The district court was not detained by arguments that be-

cause the ESA was a penal statute, Congress must “‘define

the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory

enforcement.” Jd. at 285 (quoting Kolender v. Lawson, 461

U.S. 352, 357 (1983)). Under the court’s view, to avoid con-

duct leading to “harm” and therefore criminal conviction for

prohibited take, an ordinary person would be required to con-

duct “an evaluation of the species involved, the biological

needs of that species, and the degree of habitat modification

[permissible], all of which are readily ascertainable” at least

according to the court. /d. at 286.

The court of appeals affirmed the district court per curiam,

concluding that such concerns “can be addressed when and if

they are properly raised in the framework of a concrete chal-

lenge to a particular application of the regulation.” Sweet

Home Chapter of Communities for a Great Or. v. Babbitt, |

F.3d 1, 3-5 (D.C. Cir. 1994). On appeal, Respondents again

emphasized that a broad construction of the harm regulation

“left to the whims and predictions of biologists to determine

when a habitat modification is ‘significant’ and when such a

modification ‘significantly impair[s] essential behavioral pat-

_ terns.” Jd. at 4. Respondents’ concern was that “[p]Jroperty

owners. . . will thus be subject to criminal sanctions under the

ESA based on ‘some biologist’s subjective view.”” Jd. at 4-5.

Writing in concurrence, Chief Judge Mikva additionally re-

lied on the Chevron analysis to uphold the regulation. Jd. at 8.

Placing the burden on Respondents, he concluded that

“Co]verall, there is nothing in the ESA itself or in its legisla-

tive history that unambiguously demonstrates that the term

‘take’ does not encompass habitat modification.” /d. at 11.

He viewed Chevron as a “command” to defer to the agency’s

interpretation of the statute, apparently notwithstanding its

criminal application. Jd.

Judge Williams concurred, but only because he viewed the

1982 ESA amendments, which authorized permits to take

listed species in conjunction with otherwise lawful activities,

as supporting an inference that the take prohibition encom-

passed habitat modification. Jd Otherwise, applying tradi-

tional tools of statutory construction, he would have invali-

dated the regulation. Jd.

Judge Sentelle dissented. Applying Chevron, he concluded

that there was no reasonable way that the term harm in the

definition of take could include habitat modification:

I have in my time seen a great many farmers

modifying habitat. They modify by plowing, by

tilling, by clearing, and in a thousand other

ways. At no point when I have seen a farmer

so engaged has it occurred to me that he is

taking game. Nor do I think it would occur to

anyone else that he was taking wildlife. He

may be doing something harmful to wildlife,

but he is not “taking” it.

Id. at 12.

Respondents petitioned for rehearing. On further consid-

eration, Judge Williams conducted an exhaustive review of the

1982 ESA amendments and determined that the best that

could be said is that the amendments supported an inference

that “some prohibited takings are ‘incidental’ to otherwise

lawful activities.” Sweet Home Chapter of Communities for a

Shae MET GA Fad)

Great Or. v. Babbitt, 17 F.3d 1463, 1467 (D.C. Cir. 1994)

(emphasis in original). But, Judge Williams noted, “It does

not follow, however, that such incidental takings include the

habitat modifications embraced by the [Petitioners’] definition

of ‘harm.”” Jd. Thus, the court reversed, invalidating the harm

regulation as “neither clearly authorized by Congress” nor a

“reasonable interpretation of the statute.” Jd (citing Chev-

ron, 467 U.S. at 842-44).

The court emphasized that the ESA was a criminal statute

and the regulatory definition of the term “harm” potentially

applied to “[a] farmer who harvests crops or trees on which a

species may depend” so that “if the benefit [of the habitat]

withdrawn be important, then the regulation sweeps up the

farmer’s decision.” Jd. at 1464-65. To avoid this strange re-

sult, the court applied the maxim noscitur a sociis — words

should be known by the company they keep — to avoid giv-

ing unintended breadth to the statute. Jd. at 1465.

Judge Mikva dissented, complaining that the majority

“jettison[ed] the Chevron standard.” Jd at 1473. He main-

tained that the ESA and its legislative history are silent or at

best ambiguous as to the scope of the term “harm.” Jd. at

1473-74. He would have given substantial deference to the

agency because “[t]ies are supposed to go to the dealer under

Chevron,” apparently even in criminal enforcement actions.

Id. at 1473.

Petitioners sought rehearing en banc, contending that the

court of appeals interpreted the regulation more broadly than

the agency and demanding to know under what step of the

Chevron analysis the court decided the case. The court denied

the petition. Announcing that its decision rested on Step 1 of

the Chevron analysis, the court concluded that “the statute,

fairly read in the light of the traditional tools of statutory in-

terpretation, manifests a clear determination by Congress that

the prohibitions of § 9 should not reach habitat modification

as defined by the Department, where there is no direct action

by the defendant against any member of the species.” Sweet

Home Chapter of Communities for a Great Or. v. Babbitt, 30

F.3d 190, 193 (D.C. Cir. 1994) (internal quotations omitted).

The court also noted that “the factors involved in the first

‘step’ are also pertinent to whether an agency’s interpretation

is ‘reasonable.’” Jd.

Judge Silberman dissented from the denial of rehearing en

banc. In his dissent, he observed:

Keeping in mind that we are dealing with a

criminal statute, I am not at all sure that Chev-

ron even governs our review. Cf. United States

v. Thompson/Center Arms Co., 119 L. Ed. 2d

308, 112 S. Ct. 2102, 2110 & nn. 9 & 10

(1992) (plurality opinion). That is to say, the

Chevron presumption that Congress has dele-

gated to the administrative agency primary

authority to reconcile ambiguities in statutory

language — may not apply when the statute

contemplates criminal enforcement. Cf Kelly

v. EPA, 15 F.3d 1100, 1107 (D.C. Cir. 1994).

Id. at 194.

It is on this issue that Amici write. Judge Silberman was

correct in raising the Rule of Lenity issue and this Court can

affirm on that ground. See Thigpen v. Roberts, 468 U.S. 26,

28 (1984) (“we may affirm on any ground that the law and

the record permit and that will not expand the relief granted

below”) (citing United States v. New York Tel. Co., 434 U.S.

159, 166 n.8 (1977)).

ARGUMENT

I. THE RULE OF LENITY GOVERNS REVIEW OF

STATUTES OF CRIMINAL APPLICATION AND

REGULATIONS PROMULGATED THEREUNDER

In all cases, when the statute is clear, a court must give ef-

fect to the unambiguously expressed intent of Congress.

Ratzlaf v. United States, 114 S. Ct. 655, 662-63 (1994)

(when text of statute criminalizing willful structuring of cur-

rency transactions is clear, lenity does not apply). But differ-

ent concerns are raised when a court reviews an ambiguous

statute with criminal application.

The Rule of Lenity “is rooted in fundamental principles of

due process which mandate that no individual be forced to

speculate, at peril of indictment, whether his conduct is pro-

hibited.” Dunn v. United States, 442 U.S. 100, 112 (1979)

(citations omitted). Thus, after applying the ordinary tools of

statutory construction, if a court is left with an ambiguous

statute, the Rule of Lenity applies to resolve the ambiguity in

the defendant’s favor. United States v. Thompson/Center

Arms Co., 112 S. Ct. 2102, 2109-10 (1992) (plurality opin-

ion).

The Rule of Lenity has long been employed by this Court

as a tool of statutory construction in the context of criminal

statutes. United States v. Wiltberger, 18 U.S. (S Wheat.) 76,

94 (1820) (Marshall, J.) (“The rule that penal laws are to be

construed strictly, is perhaps not much less old than construc-

tion itself.”).3 Since the dawn of the modern administrative

3 See also Black’s Law Dictionary 1196 (5th ed. 1979); Daniel A.

Per-Lee, annot., Supreme Court's Views as to the “Rule of Lenity” in the

Constructiun of Criminal Statutes, 62 L. Ed. 2d 827 (U.S. Supp. 1995); 3

Sutherland Statutory Construction §§ 59.02-03 (Norman J. Singer ed.,

Sth ed. 1992).

10

state, this Court uniformly has relied on or considered the

Rule of Lenity to resolve ambiguity in statutes with criminal

application without considering or giving deference to agency

interpretation. See, e.g., United States v. Granderson, 114 S. |

Ct. 1259 (1994); Thompson/Center, 112 S. Ct. 2102;

Williams v. United States, 458 U.S. 279 (1982); United States

v. Bass, 404 U.S. 336 (1971); see also Daniel A. Per-Lee, |

annot., Supreme Court’s Views as to the “Rule of Lenity” in

the Construction of Criminal Statutes, 62 L. Ed. 2d 827 (U.S.

Supp. 1995).

Lenity is the applicable rule when the statute has criminal

application, whether the ambiguity arises in a criminal pro-

ceeding or in a civil setting. Jd.; see also Crandon v. United

States, 494 U.S. 152, 168 (1990) (applying lenity in interpret-

ing a criminal statute invoked in a civil action). As this Court

has noted:

[Lenity] is not a rule of administration calling

for courts to refrain in criminal cases from ap-

plying statutory language that would have been

held to apply if challenged in civil litigation.

Thompson/Center, 112 S. Ct. at 2110 n. 10.

The Rule of Lenity has been used in tandem with general

notions of fairness to avoid criminalizing otherwise innocent

behavior. See Williams v. United States, 458 U.S. 279, 290

(1982) (rejecting interpretation of statute making it a federal

offense to write a check with insufficient funds because it

would “render a wide range of conduct violative of federal

law”); see also United States v. Kozminski, 487 U.S. 931,

951 (1988) (lenity applies when interpretation “would appear

to criminalize a broad range of day to day activity”); Liparota

v. United States, 471 U.S. 419, 426 (1985) (lenity applies

when “to interpret the statute otherwise would be to criminal-

ize a broad range of apparently innocent conduct”).

ee

1]

From these established precedents, it is clear that this

Court resolves ambiguity in statutes with criminal application

in favor of the person whose innocent conduct might other-

wise be swept up in the rush to give deference to an agency

interpretation. These precedents guide this Court for good

reason — with an agency unaccountable to the electorate. As

Justice Scalia has noted, the “temptation to stretch the law to

fit the evil is an ancient one, and it must be resisted.” Moskal

v. United States, 498 U.S. 103, 132 (1990) (Scalia, J., dissent-

ing).

A. Harm by Habitat Modification Has

Been, and Will Continue To Be, Prose-

cuted as a Criminal Offense.

The ESA is a criminal statute. Violation of it or Petition-

ers’ regulation at issue here carries substantial criminal sanc-

tions:

Any person who knowingly violates, ... any

provision of this chapter, or any provision of

any .. . regulation issued in order to implement

subsection ... (a)(1) ... (B) ... of section

1538 of this title [prohibiting “take”] shall

upon conviction, be fined not more than

$50,000 or imprisoned for not more than one

year, or both.

16 U.S.C. § 1540(b) (emphasis added).

In addition to fines and imprisonment, the ESA authorizes

criminal forfeiture:

All guns, traps, nets, and other equipment, ves-

sels, vehicles, aircraft, and other means of

transportation used to aid the taking, possess-

ing, selling, purchasing, offering for sale or

purchase, transporting, delivering, receiving,

“we

ee

12

carrying, shipping, exporting, or importing of

any fish or wildlife or plants in violation of this

chapter, any regulation made pursuant thereto,

Or any permit or certificate issued thereunder

shall be subject to forfeiture to the United

States upon conviction of a criminal violation

pursuant to subsection (b)(1) of this section.

16 U.S.C. § 1540(e)(4)(B); see Sammons v. Commissioner,

838 F.2d 330, 336 (9th Cir. 1988); United States v. 2,507

Live Canary Winged Parakeets, 689 F. Supp. 1106, 1120

(S.D. Fla. 1988).

The ESA’s criminal penalties may be enhanced by applica-

tion of the Sentencing Reform Act of 1984. See, e.g., United

States v. Tran, 955 F.2d 288 (Sth Cir.) (applying Title 18

U.S.C. app. 4, § 2Q2.1 to increase penalty for ESA violation

because the one species taken was substantial relative to

overall population), cert. denied, 113 S. Ct. 127 (1992).

Similarly, the Criminal Fines Improvements Act of 1987 may

result in significantly higher criminal fines, up to $100,000 per

violation for individuals, 18 U.S.C. § 3571(b)(5), and up to

$200,000 per violation by a corporate violator.4 18 U.S.C.

§ 3571(c)(5).

4 In addition, under the Lacey Act, any person who

knowingly imports or exports any fish or wildlife or

plants in violation of any provision of this Act ...

knowing that the fish or wildlife or plants were taken,

possessed, transported, or sold in violation of, or in a

manner unlawful under, any underlying law, treaty or

regulation, shall be fined not more than $20,000, or

imprisoned for not more than five years, or both.

16 U.S.C. § 3373(d)(1)(A). The Lacey Act is often used in tandem with,

or in lieu of, the ESA misdemeanor provisions to obtain a felony convic-

13

In 1978, Congress amended the ESA to lessen the intent

standard for a violation of the “take” prohibition by requiring

only a knowing act as opposed to a willful one. See Pub. L.

No. 95-632, § 6, 92 Stat. 3751 (1978). Now, the intent stan-

dard is the same for both criminal and civil violations, whether

in cases for injunctive relief or in criminal proceedings, and

the body of law developed in the civil context informs criminal

proceedings. Compare 16 U.S.C. § 1540(a)(1) (civil penal-

ties) with 16 U.S.C. § 1540(b)(1) (criminal penalties).

The “knowing” standard has been interpreted to mean that

the prosecution need prove only that the defendant had the

general intent to carry out the proscribed conduct. See, e.g.,

United States v. Nguyen, 916 F.2d 1016, 1020 (Sth Cir. 1990)

(defendant need only have intended to possess a turtle, rather

than to know that the turtle possessed was endangered);

United States v. St. Onge, 676 F. Supp. 1044 at 1045

(defendant need only have intended to shoot his gun; no de-

fense that he did not know the animal was endangered or

threatened); United States v. Billie, 667 F. Supp. 1485, 1492-

93 (S.D. Fla. 1987) (same).°

tion and enhanced penalties when the conduct violates state law as well

as the ESA. See, e.g., United States v. Doyle, 786 F.2d 1440 (9th Cir.)

(affirming conviction under Lacey Act for violating state wildlife permit,

but reversing conviction under ESA for insufficient evidence), cert. de-

nied, 497 U.S. 984 (1986). Thus, violations under the ESA may be

prosecuted as criminal misdemeanors or felonies, depending on the cir-

cumstances.

> These cases apparently rest upon the legislative history to the 1978

amendments to the ESA. A committee report noted that the ESA did

“not intend to make knowledge of the law an element of either civil

penalty or criminal violations of the Act.” See H.R. Conf. Rep. No.

1804, 95th Cong., 2d Sess. 26, reprinted in 1978 U.S.C.C.A.N. 9484,

9493. Of course, knowingly shooting a gun at an animal is different in

kind than knowingly plowing one’s field.

14

The General Accounting Office reports that there have

been 126 criminal prosecutions under the ESA for violaticns

of the “take” prohibition. General Accounting Office, Endan-

gered Species Act: Information on Species Protection on

Nonjfederal Lands, GAO/RCED-95-16, at 11-12 (1994)

[hereinafter the “GAO Report”]. Of these, at least seven

were brought on the basis of “habitat modification” on non-

federal lands, although the cases are not identified and the

details of the conduct leading to criminal prosecution are not

discussed in the GAO Report. Jd. at 13. Several criminal

prosecutions for habitat modification have been reported

widely, however.

In 1987, the City of Rancho Palos Verdes, California, was

criminally prosecuted for taking an endangered butterfly by

destroying its habitat. United States v. City of Rancho Palos

Verdes, 841 F.2d 329, 330 (9th Cir. 1988). The City success-

fully defended the criminal charge on the basis that, as a mu-

nicipal corporation and a political subdivision of the State, it

was not a “person” under the ESA. Jd. The ESA subse-

quently was amended to resolve the ambiguity of who could

be prosecuted, Pub. L. No. 100-478, § 1001, 102 Stat. 2306

(1988), so that municipalities as well as any “individual, cor-

poration, partnership, trust, association, or any other private

entity; or any officer, employee, agent, department, or instru-

mentality of the Federal Government [or] of any State” are

now at risk of criminal prosecution for alleged habitat modifi-

cation of a listed species. 16 U.S.C. § 1532(13).

It is now a common tactic for Petitioners to threaten public

entities and officials for issuing permits for ordinary and law-

ful land use activities that, in Petitioners’ judgment, result in

harm to a listed species through habitat modification. See

Robert D. Thornton, Zakings Under the Endangered Species

Act Section9, 4 Nat. Resources & Env’t 50-51 (Spring

15

1990). Petitioners generically threatened public officials and

landowners alike in the “informal” guidelines for authorizing

or conducting timber harvesting and related activities in and

around activity centers of the threatened northern spotted

owl.’ See U.S. Fish and Wildlife Service, Region 1, Proce-

dures Leading to Endangered Species Act Compliance for the

Northern Spotted Owl (July 1, 1990) [hereinafter the

“Guidelines”]. Petitioners included this admonition for per-

mitting agencies: “Because the states authorize private timber

harvest, they may be party to take on private lands, as well as

on state lands.” Jd. at 13.

Petitioners’ actions are not confined to the Pacific North-

west. In January 1992, three civilian employees of the De-

partment of the Army were indicted for allegedly taking en-

dangered Red-Cockaded Woodpeckers by authorizing an oth-

© For example, Thornton reports that the U.S. Fish and Wildlife

Service (the “FWS”) sent a letter to a city in California that proposed to

zone certain property for development in the habitat of an endangered

species, stating:

Section 9 of the Endangered Species Act of 1973 ...

makes it unlawful for any person to take an endangered

species without a permit... . Section 11 of the Act pre-

scribes civil penalties of up to $10,000, or imprison-

ment for up to one year, or both, for knowingly violat-

ing any provision of the Endangered Species Act... .

[W]e must advise you, unless you first secure a section

10(a) permit authorizing the incidental take. . . , the

approval and implementation of the proposed action

may subject... city officials to investigation by our

law enforcement branch regarding potential violations

of the Endangered Species Act.

Id. at 51.

7 The Guidelines are discussed in detail below, see infra at 19-20.

16

erwise lawful commercial harvest on a military installation.

See Indictment, United States v. Dunn et al., Crim. No. 92-

117-COL (JRE) (M.D. Ga., filed Jan. 28, 1992). There were

no allegations of dead or physically injured woodpeckers and

the only “harm” alleged was permitting the harvest of known

nesting and cavity trees where woodpeckers could nest,

thereby leaving woodpecker colonies in the vicinity without

sufficient habitat in which to forage. /d. at 6-8.

Widely reported is the federal case against a Taiwanese

farmer near Bakersfield, California, who was indicted for

discing his field. United States v. Wang Lin Farms, Inc. &

Taung Ming-Lin, CR-F-94-5041 SSH (E.D. Cal., filed

Mar. 23, 1994) [hereinafter the “Lin Farms Indictment’’]. It

was reported that on February 20, 1994, a squadron of two

dozen state and federal agents, accompanied by helicopters,

descended on Lin’s farm, seized his tractor and disc, and ar-

rested him for violating the ESA; his farm was home to the

endangered Tipton Kangaroo Rat.® See, e.g., Chicago Trib-

une, May 30, 1994, N11.

The indictment is most instructive. See Appendix A. The

~~ government alleged that defendant “did knowingly take an

endangered species of wildlife, to wit: Tipton Kangaroo Rats,

by discing habitat essential to the survival of the Tipton Kan-

garoo Rats.” Lin Farms Indictment at 1-2.

This is a truly remarkable indictment given that habitat es-

sential to the survival of a listed species is the definition of

critical habitat, 16 U.S.C. § 1532(5), and the ESA only pro-

hibits the government, not private persons, from modifying

critical habitat. See 16 U.S.C. § 1536(a)(2). Petitioners deny

8 See 53 Fed. Reg. 25,608 (Jul. 8, 1988) (codified at 50 C.F.R. pt. 17)

(listing as endangered and determining not to designate critical habitat at

the time of listing).

17

before this Court that the ESA can, has or will be enforced in

this way, Pet. Br. at 16, 45-49, but their actions speak louder

than their words, and the court below was correct in noting

precisely this circumstance. Sweet Home, 30 F.3d at 192

(Judge Williams noted that “the government misrepresents”

its position on the effect of destruction of critical habitat for

grizzly bears).

The government filed a superseding indictment (see Ap-

pendix B), deleting the “essential habitat” element as to the

rat, but adding two more counts of unlawful taking, one for

the San Joaquin Kit Fox and another for the Blunt-Nosed

Leopard Lizard; three counts in all from the same single act of

farming. United States v. Wang Lin Farms, Inc. & Taung

Ming-Lin, CR-F-94-5041 SSH (E.D. Cal. filed May 24,

1994). While still purporting to rely on a definition of “harm”

meaning “an act which actually kills or injures wildlife,” 50

C.F.R. § 17.3, the government did not allege any dead or in-

jured rats, foxes or lizards. Early reports indicated that the

government did not know whether some rat parts seized from

the field in the midnight raid were from the listed rat because

“the only thing that distinguishes them from the Herman’s

Kangaroo rat, for instance, [which is not listed] is that their

rear feet are 1-100th of an inch longer.”? Chicago Tribune,

May 30, 1994, N11.

To be clear that the Lin Farms Indictment is about habitat

modification, one need only read the reported public state-

ments of the prosecuting Assistant U.S. Attorney: “We’re

? Petitioners have the authority under the ESA to treat species with

such similarity of appearance as if they were listed “when enforcement

personnel would have substantial difficulty in attempting to differentiate

between the listed and unlisted species.” 16 U.S.C. § 1533(e)(A)-(C).

Petitioners have listed no other rats similar in appearance to the Tipton

Kangaroo Rat.

18

enforcing the Endangered Species Act. This was an unlawful

and knowing take of habitat.” Los Angeles Times, June 10,

1994, Al, col. 1 (emphasis added). The prosecutor’s state-

ment was echoed later by the Regional Director of the FWS in

a letter to the editor where he confirmed that the charges

against the farmer were for a “knowing take of endangered

species by discing habitat of listed species.” Sacramento Bee,

June 27, 1994, B13 (emphasis added).

The U.S. Attorney has since dropped the charges against

Lin personally, and his tractor, but has maintained charges

against Lin’s company in ye: another superseding indictment.

See Appendix C; United States v. Wang Lin Co., CR-F-94-

5041 SSH (E.D. Cal., filed Jan. 12, 1995); see also Los Ange-

les Times, July 1, 1994, A26, col. 1; The Fresno Bee, Jan. 18,

1995, Al. The trial reportedly is scheduled to commence in

May 1995. San Francisco Chronicle, Jan. 19, 1995, Al5; The

Fresno Bee, Feb. 7, 1995, B2 & March 7, 1995, B2.

As these cases demonstrate, the ESA has been and will

continue to be enforced as a criminal statute even when there

is no proof of actual death or physical injury to an identifiable

listed species so long as the government is allowed to treat

ordinary land uses as unlawful habitat modifications.

B. The Harm Regulation Has Been Ap-

plied Broadly by Petitioners, Reaching

Many Types of Ordinary Land Use

Activities, Treating Them as Unlawful

Habitat Modification.

As the above examples of criminal prosecution for habitat

modification demonstrate, there is a great and very real risk to

private landowners who engage in traditional land use activi-

ties in or around the habitat of threatened or endangered spe-

cies. Contrary to Petitioners’ assertions in their Brief to this

19

Court, the “harm” regulation is neither narrowly tailored nor

carefully applied. Pet. Br. at 16, 45-49.

Petitioners’ enforcement of the spotted owl Guidelines il-

lustrates the breadth of the regulation. The Northern Spotted

Owl (strix occidentalis caurina) was listed as a threatened

species on June 26, 1990. See Determination of Threatened

Status for the Northern Spotted Owl, 55 Fed. Reg. 26,114

(codified at 50 C.F.R. § 17.11). In July 1990, FWS made

available the “informal” Guidelines to those who requested

them, purportedly to define biologically when a prohibited

take would occur from timber harvesting and related activities

in and around known spotted owl sites. See Guidelines.

The Guidelines established “owl circles” of various sizes

centered on an owl nest site or center of activity. Timber har-

vest and other forest management activities were prohibited in

varying degrees within these circles. Specifically, the Guide-

lines required that the best available 70 acres of suitable habi-

tat (the oldest, largest and most merchantable trees) around

the activity center be retained along with the next 500 acres of

suitable habitat within 0.7 miles of the activity center, and

then 40 percent of the rest of a circle with a radius of 1.2 to

2.2 miles, depending on location. Jd. at 10. Under the Guide-

lines, any harvest activity within the suitable habitat within the

circle would result in a prohibited take.

The Guidelines were withdrawn in the face of a substantive

and procedural challenge under the ESA and the Administra-

tive Procedures Act (the “APA”) by Respondents herein.

Sweet Home Chapter of Communities for a Great Or. v.

Turner, No. 91-2218 (D.D.C. 1991). The case was then dis-

missed as moot because the government represented to the

court that the Guidelines unequivocally were rescinded

“thereby clearly indicating its intention no longer to apply or

enforce them.” Jd. (Memorandum Order at 4 (entered

Feb. 27, 1992)). The government’s representation to the

20

court, of course, has proven to be inaccurate, and the size of

the circles has since grown to a radius of 2.8 miles, for exam-

ple, on the Olympic Peninsula in Washington State. See Pro-

posed Special Rule for the Conservation of the Northern

Spotted Owl on Non-Federal Lands, 60 Fed. Reg. 9,484,

9,492 (Feb. 17, 1995) (to be codified at 50 C.F.R. pt. 17).

FWS’s most recent special rule for the northern spotted

owl confirms the continued use of owl circles to define

“taking” (as well as the absolute absence of any requirement

for proof of actual death or injury to owls for the take prohi-

bition to apply to enforcement). FWS states:

This proposed rule would ease incidental take

restrictions on designated non-Federal lands by

limiting the incidental take prohibition for tim-

ber harvest activities to actions that fail to

maintain the 70 acres of suitable owl habitat

closest to a site center for a spotted owl. By

proposing this action, the Service is not imply-

ing that incidental take cannot occur until har-

vest activities approach and actually invade an

owl’s activity center. Rather, the Service is

proposing that in certain portions of the owl’s

range, the incidental take of an owl will no

longer be a prohibited activity unless it in-

volves harvest activities within an activity

center. !°

Id. at 9,484.

10 One might ask what restrictions needed to be eased if FWS had

truthfully withdrawn the spotted owl Guidelines as the government rep-

resented it had in court.

Bee INR a NN Rae 0K. Cin ni Aman i eRaheag en, PRU Aa at TRNAS £7 de aim

21

Moreover, FWS has selected six areas in Washington State

for the continued “take” restrictions defined by large owl

circles in order “to fill in gaps in protection under the Forest

Plan where the Federal land base alone appears currently to be

inadequate to provide for the conservation of the owl.”!! Jd

It is clear from the proposed owl rule that what Petitioners

prohibit broadly, and have been prohibiting all along, is timber

harvest across the landscape, !? not specific “harm” to owls.

\1 Thus, these prohibitions, especially in special emphasis areas of

large circles, exist not to prevent take of the owl, but to press nonfederal

lands into the public service of “conserving” the owl.

12 FWS has now attempted to extend the meaning of “harassment”

in the definition of “take” to cover habitat modification, apparently to

fill the void left by invalidation of the harm regulation. The special rule

for the owl states:

Timber harvest and related activities that disturb the

breeding and nesting functions of spotted owls within

activity centers during the breeding season can be con-

sidered incidental harassment of individual spotted

owls. More specifically, incidental harassment of spot-

ted owls generally can include harvest activities that

occur within the closest 70 acres of suitable habitat sur-

rounding a site center during the owl's reproductive

period. . . . Actions with the potential to disturb nesting

spotted owls include, but are not limited to, harvest re-

lated activities such as felling, bucking, and yarding:

road construction; and blasting.

Id. at 9491 (emphasis added).

It is worth noting that FWS originally proposed a definition of

“harass” that included “significant environmental modification or deg-

radation” that “actually or potentially harms wildlife by killing or injur-

ing it, or by annoying it to such an extent as to cause serious disruption

in essential behavioral patterns such as feeding, breeding or sheltering.”

40 Fed. Reg. 28,712, 28,714 (1975). In its final rule, FWS split the pro-

22

The infamous “bird letter”!> program in the area occupied

by the golden-cheeked warbler around Austin, Texas, further

refutes the image painted by Petitioners here of a narrow in-

terpretation. At hearings last year on ESA reauthorization,

one witness testified about her experiences trying to obtain a

bird letter from FWS in order to build a family home on her

property. When she questioned FWS, she testified, “FWS

told us it was irrelevant whether the endangered species were

actually on our property. Their concern was for the birds that

were supposedly nearby.” Jd.

C. The Harm Regulation Fails to Give

Fair Warning of the Many Types of

Ordinary Land Uses That May Be

Treated as Unlawful Habitat Modifica-

tions.

Given that criminal prosecutions have occurred and are

continuing, that threats of more prosecutions also have been

made and that the harm regulation has been applied broadly to

many forms of traditional land use activities now deemed un-

lawful habitat modifications, this Court should be concerned

posed rule into a new “harm” definition that included the environmental

modification provision and a reformulated “harass” definition that did

not. 40 Fed. Reg. 44,412, 44,413 (1975). Moreover, FWS retained a

higher degree of fault in the rule to establish harassment, requiring an

intentional or criminally negligent act that creates the likelihood of in-

jury to wildlife. Jd. Thus, the special rule speaks volumes about Petition-

ers’ facile interpretation of the Section 9 prohibition on take.

13 A bird letter, as the witness explained it to the committee,

“acknowledges that a property owner’s land has been unoccupied (by

warblers) for at least three years, or that there is no suitable habitat on

the land.” Reauthorization of the Endangered Species Act Focusing on

Conservation of Private Lands: Hearings Before the Senate Committee

on Environment and Public Works, Subcommittee on Clean Water, Fish-

eries and Wildlife, 103d Cong., 2d Sess. (July 19, 1994) (statement of

Mary A. Davidson).

pasdacedeiee

23

that innocent landowners will be ensnared without warning by

the reach of the statute and regulation.

Petitioners have given some examples of what the public

needs to know to avoid criminal prosecution for habitat

modification under the “harm” regulation:

Identifying habitat modifications that harm in-

dividuals of a species involves understanding

the species’ life history. For example, the

Fiorida jay scrub is highly territorial and relies

for its existence on food cached within its terri-

tory. A project that destroys occupied habitat

and thus the food supply for that family group

is likely to result in their starvation. Similarly, a

number of birds are highly site-tenacious, re-

turning year after year to the same nesting site.

Removal of nesting habitat on that site is likely

to result in loss of the pair’s reproductive ca-

pability, and may result in loss of the pair for

lack of available feeding or nesting habitat.

Opening up or fragmenting the habitat may

similarly affect the species by introducing in-

creased predation or parasitism.

See Draft Endangered Species Consultation Handbook, U.S.

Department of Interior, U.S. Fish & Wildlife Service 4-43

(Nov. 1994). To gain such information, Petitioners seem to

expect landowners to peruse the Federal Register daily or risk

going to jail. See Adamo Wrecking Co. v. United States, 434

U.S. 275, 283 n.2 (1978) (“persons subject to the Act, includ-

ing innumerable small businesses, may protect themselves

against arbitrary administrative action only by daily perusal of

proposed emission standards in the Federal Register and by

immediate initiation of litigation in the District of Columbia to

protect their interests”).

24

But even the Federal Register would not be enough here.

At the time this case was brought and at present, none of the

spotted owl “guidelines” have been promulgated under the

APA as final rules in the Federal Register and no standard has

been enunciated by the government to give fair notice to pri-

vate landowners of what conduct would constitute “harm” to

most of the 781 species listed. GAO Report at 4 (number of

species listed as of May 10, 1993).

Only recently has FWS even admitted the need to make

such conduct more clear. See 59 Fed. Reg. 34,272 (July 1,

1994) (policy statement “to identify, to the extent known at

the time a species is listed, specific activities that will not be

considered likely to result in violation of section 9. To the

extent possible, activities that will be considered likely to re-

sult in violations also will be identified in as specific manner as

possible.”).

Of the 781 species listed as either threatened or endan-

gered under the ESA, 90 percent, or 712 species, have some

or all of their habitat on nonfederal lands. GAO Report at 4.

Of the 712 species, 517 species have over 60 percent of their

total habitat on nonfederal land, while 264 of the 712 species

are entirely dependent on nonfederal lands for their habitat.

Id. at 5. Each of these species has its own peculiar habitat

needs and, in some instances, species that may be found in the

same area have conflicting habitat requirements.!* Innocent

14 See, e.g., Proposed Designation of Critical Habitat for the Pacific

Coast Population of the Western Snowy Plover, 60 Fed. Reg. 11,768,

11,771-72 (Mar. 2, 1995) (“The [FWS] also excluded from proposed

critical habitat sites that would significantly conflict with the survival

and recovery objectives of other listed species. Significant conflicts were

identified between the habitat needs of snowy plovers and biological

objectives for the California clapper rail, light-footed clapper rail and

salt marsh harvest mouse. The two rails and mouse are federally listed

endangered species.” (scientific names omitted)).

25

persons today are without notice of what land use activities in

Petitioners’ view might constitute a prohibited take — cutting

trees to open the canopy so the gray wolf may thrive!5 or pre-

serving trees for late-successional, closed-canopy species such

as the spotted owl.!¢

Petitioners’ definition of “harm” gives no warning at all

because it fails to provide any intelligible standard in terms

that a common citizen of ordinary intelligence will understand.

See, e.g., Ratzlaf v. United States, 114 S. Ct. at 663 (“fair

warning should be given to the world in language that the

common world will understand, of what the law intends to do

if a certain line is passed.”). A primary policy underlying the

Rule of Lenity is that “fair warning should be given to the

world in language that the common world will understand.”

Moskal, 498 U.S. at 131 (Scalia, J., dissenting).

The regulatory definition of “harm” is so broad that ordi-

nary landowners of “common intelligence must necessarily

guess at its meaning and differ as to its application [and it

therefore lacks] the first essential of due process of law.”

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

Whenever Constitutional issues are implicated, the Court

should ensure that the statutory term at issue will

be construed so that [it is] constitutional. ...

By placing upon a criminal statute a narrow

construction, we avoid the possibility of imput-

ing to Congress an enactment that lacks neces-

Sary precision.

15 See 59 Fed. Reg. 60,252 (Nov. 22, 1994).

16 See 55 Fed. Reg. 26,114 (June 26, 1990).

26

Evans v. United States, 112 S. Ct. 1881, 1893 (1992)

(Kennedy, J., concurring); see Custis v. United States, 114 S.

Ct. 1732, 1743 (1994) (Souter, J., dissenting).

The principle behind the Rule of Lenity is that “before a

man can be punished as a criminal under the federal law his

case must be plainly and unmistakably within the provisions of

some statute.” United States v. Gradwell, 243 U.S. 476, 485

(1917) (internal quotations omitted); see also United States v.

Bass, 404 U.S. at 347-49. Not only does the landowner not

have notice of the conduct proscribed by the harm regulation,

but there is no notice of the liability for a violation. Bell v.

United States, 349 U.S. 81 (1955) (Rule of Lenity should be

applied to resolve any doubt as to whether Congress intended

a single transaction to be punished as multiple offenses).

When habitat modification is the charged conduct, how are

the violations counted? Per incident of habitat modification?

Per incident per day? Per number of animals the habitat could

have supported? See, e.g., Rogers v. United States, 367 F.2d

998 (8th Cir. 1966) (one count per day under the Migratory

Bird Treaty Act (the “MBTA”)), cert. denied, 386 U.S. 943

(1967); United States v. FMC Corp., 572 F.2d 902 (2d Cir.

1978) (one count per species per day under the MBTA);

United States v. Equity Corp., Cr. 75-51 (D. Utah Dec. 8,

1975); United States v. Stuarco Oil Co., 73-Cr-129 (D. Colo.

Aug. 17, 1973) (one count per animal under the MBTA);

United States v. Corbin Farm Serv., 444 F. Supp. 510, 531

(E.D. Cal.) (one count per act resulting in a violation under

the MBTA), aff'd, 578 F.2d 259 (9th Cir. 1978).

In the end, the government sums up the problem with its

own regulation. In their Petition for Certiorari, Petitioners

blithely opine that “the cutting of a nest tree in which an en-

dangered species dwells and breeds can effectively kill the

bird, regardless of whether the bird is at home when the tree

falls.” Appellants’ Pet. for a Writ of Cert. at 23. This Court

27

should not miss that in its example, the government requires

no knowledge by the landowner of the bird’s presence or its

behavioral patterns, no scienter in cutting the tree down, no

evidence that the bird actually died and, if so, from what

cause, no proof that the bird did not move elsewhere and no

hint that the landowner should go free of punishment if the

bird survived and reproduced.

II. CHEVRON DOES NOT GOVERN REVIEW OF

STATUTES OF CRIMINAL APPLICATION;

CONGRESS DID NOT DELEGATE THE POWER

To DEFINE A CRIMINAL OFFENSE OF HABITAT

MODIFICATION TO Fws

As the above sections illustrate, the case for applying the

Rule of Lenity is at it is strongest when an ambiguous statute

— that is, a law that fails to give warning of the conduct pro-

scribed — is interpreted by an agency such that innocent per-

sons may be put at risk of prosecution for normal day-to-day

activities. Lenity gives ties to the defendant; Chevron gives

deference to the agencies. Compare United States v. White,

888 F.2d 490, 497 (7th Cir. 1989) (“The rule of lenity is a tie-

breaker when there is an otherwise-unresolved ambiguity”)

with Sweet Home, 17 F.3d at 1473 (Mikva, J., dissenting)

(under Chevron, “ties go to the dealer”). In the purely civil

context where Congress leaves a statutory gap to be filled

through reasonable regulation, the Chevron approach makes

sense because agencies possess expertise in technical areas not

enjoyed by courts,!” but no such expertise exists in defining

'7 Chevron was a citizen’s suit petitioning for review of a rule

promulgated by an agency to implement a permit program designed by

Congress and imposed on the States under the Clean Air Act. Chevron,

467 US. at 840 (citing 42 U.S.C. §§ 7502(b)(6) & 7607(b)(1)). The

statute required states in areas that failed to meet prescribed national

ambient air quality standards set by the Environmental Protection

Agency (“EPA”) to establish permit programs regulating “new or

28

criminal behavior, the prerogative of the legislature. See Lipa-

rota v. United States, 471 U.S. at 424.

This Court has not directly considered whether the Rule of

Lenity trumps or supplants the Chevron approach when am-

biguous statutes have criminal application. It is, however, well

aware of the issue. In Regents of Univ. of Cal. v. Public Em-

ployment Relations Bd., 485 U.S. 589, 602 (1988), this Court

applied neither the Rule of Lenity nor the Chevron approach

when construing the Private Express Statutes, which establish

the U.S. Postal Service monopoly and exceptions thereto,

because this Court determined that resort to the legislative

history revealed Congressional intent.

However, Justice White, while concurring in the result,

stated that this Court’s rationale should have been consistent

with Chevron, giving deference to the agency’s postal regula-

tions. /d. at 603 (White, J., concurring). Justice Stevens, dis-

senting, would have narrowly construed the statutes, in part

because they imposed criminal penalties, and he cautioned

that the Rule of Lenity should apply. /d. at 604 (Stevens, J.,

dissenting).

Still, this Court has been consistent in its preference for re-

solving statutory ambiguity in favor of lenity when criminal

penalties potentially are implicated. Yet, lower courts have

not been at all consistent. Compare United States v. Plaza

Health Labs., Inc., 3 F.3d 643, 649 (2d Cir. 1993) (reversing

criminal conviction under Clean Water Act on plain language

modified major stationary sources” of air pollution. Jd. EPA implement-

ing regulations allowed states to adopt a plant-wide definition of station-

ary source as opposed to one in which each source of pollution-emitting

devices are regulated. The sole issue before this Court in Chevron was

whether EPA’s interpretation was based on a reasonable construction of

the statutory term “stationary source.” /d. No criminal penalties were

prescribed by the Clean Air Act or regulation for a state’s failure to at-

tain air standards, to implement a program or to adopt the regulation.

29

grounds, but suggesting Chevron would apply had EPA is-

sued regulations), cert. denied, 114 S. Ct. 2764 (1994) with

United States v. Borowski, 977 F.2d 27 (lst Cir. 1992)

(applying Rule of Lenity to the Clean Water Act in construing

whether defendant’s actions violated EPA regulatory stan-

dards and, if so, whether they were punishable by criminal

sanctions); see also United States v. Weitzenhoff, 35 F.3d

1275 (9th Cir. 1993) (failing to apply the Rule of Lenity in

construing “knowingly” despite the statute’s facial ambigu-

ity), cert. denied, 1995 U.S. LEXIS 777 (Jan. 23, 1995);

United States v. Wagner, 29 F.3d 264 (7th Cir. 1994)

(considered the Rule of Lenity in construing the meaning of

“knowingly” but relying on other decisions that held

“knowingly” to mean only general intent); Conoco, Inc. v.

Skinner, 970 F.2d 1206, 1228 (3d Cir. 1992) (rejecting lenity

and applying Chevron).

Of course, in the civil context, where Chevron normally

would apply, “Congress does not violate the Constitution |

merely because it legislates in broad terms, leaving a certain

degree of discretion to executive or judicial actors.” United

Statés v. Touby, 500 U.S. 160, 165 (1991). But even in the

civil context, this Court has recognized that such delegation is

permissible only “[s]o long as Congress ‘lay[s] down by legis-

lative act an intelligible principle to which the person or body

authorized to [act] is directed to conform.’” Jd. (quoting J/. W.

Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409

(1928)).

Moreover, this Court has suggested, but not decided, that

when the delegation involves a statute with criminal applica-

tion, “something more than a mere ‘intelligible principle’ is

required.” Touby, 500 U.S. at 165. Before regulations that

pose a heightened risk to individual liberty are sustained,

courts should require that Congress provide specific guidance

as to the conduct it intends to proscribe. See United States v.

Robel, 389 U.S. 258, 277, 281 (1967) (Brennan, J. concur-

30

ring) (area of permissible indefiniteness of delegation narrows

when the regulation implicates criminal sanctions; such in-

definiteness results in inadequate notice to affected persons).

No such guidance is evident on the face of the ESA; in-

deed, the regulation itself lacks any specificity. Landowners

are left to the whim and speculation of government biologists

to learn whether they can use their land at all or will face

criminal prosecution for past acts of farming or timber har-

vest, the very concern raised by Respondents herein and the

issue resolved now by applying the Rule of Lenity, not Chev-

ron deference. Sweet Home, | F.3d at 4.

CONCLUSION

The judgment of the court of appeals should be upheld.

March 24, 1995

Respectfully submitted,

Albert Gidari-

John Dentler

PERKINS COIE

1201 Third Ave., 40th Floor

Seattle, WA 98101-3099

(206) 583-8888

Daniel J. Popeo

Paul D. Kamenar

Washington Legal Foundation

2009 Massachusetts Ave. N.W.

Washington, D.C. 20036

(202) 588-0302

"Counsel of Record

Attorneys for Amici Curiae

A-1

APPENDIX A

UNITED STATES v. WANG LIN FARMS CO., INC.,

and TUANG MING-LIN

CR-F-94-5041 SSH (E.D. Cal.,

filed Mar. 23, 1994)

INFORMATION

The United States Attorney charges: TH A T

WANG LIN FARMS CO., INC. and

TAUNG MING-LIN, -

defendants herein, between on or about February 12, 1994,

and on or about February 14, 1994, in the County of Kern,

State and Eastern District of California, did knowingly take an

endangered species of wildlife, to wit: Tipton Kangaroo Rats,

by discing habitat essential to the survival of the Tipton Kan-

garoo Rats, all of which is in violation of Titlé 16, United

States Code, Sections 1538(a)(1)(B) and 1540(b)(1), Title 50,

Code of Federal Regulations, Section 17.21(c), and Title 18,

United States Code, Section 2.

DATED: March 23, 1994

Respectfully Submitted,

CHARLES J. STEVENS

United Siates Attorney

By: /S/

KAREN A. KALMANIR

Assistant U.S. Attorney

B-1

APPENDIX B

UNITED STATES v. WANG LIN FARMS CO.,

INC., and TAUNG MING-LIN,

aka: Ming Tang Lin

CR-F-94-5041 SSH (E.D. Cal.,

filed May 24, 1994)

SUPERSEDING INFORMATION

COUNT ONE: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. §2-— Unlawful Take

and Aiding and Abetting the Unlawful

Take of an Endangered Species]

The United States Attorney charges: TH A T

WANG LIN FARMS CO., INC. and

TAUNG MING-LIN,

AKA: MING TANG LIN,

defendant herein, between on or about February 12, 1994, and

on or about February 14, 1994, in the County of Kern, State

and Eastern District of California, did knowingly take and aid

and abet the taking of an endangered species of wildlife, to

wit: Tipton Kangaroo Rats, by discing habitat of the Tipton

Kangaroo Rats, all of which is in violation of Title 16, United

States Code, Sections 1538(a)(1)(B) and 1540(b)(1), Title 50,

Code of Federal Regulations, Section 17.21(c), and Title 18,

United States Code, Section 2.

COUNT TWO: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. §2- Unlawful Take

and Aiding and Abetting the Unlawful

Take of an Endangered Species]

B-2

The United States Attorney further charges: TH A T

WANG LIN FARMS CO., INC. and TAUNG

MING-LIN, AKA: MING TANG LIN,

defendants herein, between on or about February 12, 1994,

and on or about February 14, 1994, in the County of Kem,

State and Eastern District of California, did knowingly take

and aid and abet the taking of an endangered species of wild-

life, to wit: San Joaquin Kit Fox, by discing habitat of the San

Joaquin Kit Fox, all of which is in violation of Title 16, United

States Code, Sections 1538(a)(1)(B) and 1540(b)(1), Title 50,

Code of Federal Regulations, Section 17.21(c), and Title 18,

United States Code, Section 2.

COUNT THREE: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. §2- Unlawful Take

and Aiding and Abetting the Unlawful

Take of an Endangered Species]

The United States Attorney further charges: TH AT

WANG LIN FARMS CO., INC. and TAUNG

MING-LIN, AKA: MING TANG LIN,

defendant herein, between on or about February 12, 1994, and

on or about February 14, 1994, in the County of Kern, State

and Eastern District of California, did knowingly take and aid

and abet the taking of an endangered species of wildlife, to

wit: Blunt-nosed Leopard Lizard, by discing habitat of the

Blunt-nosed Leopard Lizard, all of which is in violation of

Title 16, United States Code, Sections 1538(a)(1)(B) and

1540(b)(1), Title 50, Code of Federal Regulations, Section

17.21(c), and Title 18, United States Code, Section 2.

DATED: May 19, 1994.

Respectfully Submitted,

CHARLES J. STEVENS

United States Attorney

By: /S/

KAREN A. KALMANIR

Assistant U.S. Attorney

C-1

APPENDIX C

UNITED STATES v. WANG LIN COMPANY.

INC., aka WANG LIN FARMS CO., INC.,

CR-F-94-5041 SSH (ED. Cal.,

filed Jan. 12, 1995)

SECOND SUPERSEDING INFORMATION

COUNT ONE: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. § 2 - Unlawful Take and

Aiding and Abetting the Unlawful Take of

an Endangered Species]

The United States Attorney charges: TH A T

WANG LIN COMPANY, INC.

AKA: WANG LIN FARMS CO., INC.

defendant herein, between on or about February 12, 1994, and

on or about February 14, 1994, in the County of Kern, State

and Eastern District of California, did knowingly take and aid

and abet the taking of an endangered species of wildlife, to

wit: Tipton Kangaroo Rats, by discing habitat of the Tipton

Kangaroo Rats, all of which is in violation of Title 16, United

States Code, Sections 1538(a)(1)(B) and 1540(b)(1), Title 50,

Code of Federal Regulations, Section 17.21(c), and Title 18,

United States Code, Section 2.

COUNT TWO: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. §2 — Unlawful Take

and Aiding and Abetting the Unlawful

Take of an Endangered Species]

C-2

The United States Attorney further charges: TH A T

WANG LIN COMPANY, INC.

AKA: WANG LIN FARMS CO., INC.,

defendant herein, between on or about February 12, 1994, and

on or about February 14, 1994, in the County of Kern, State

and Eastern District of California, did knowingly take and aid

and abet the taking of an endangered species of wildlife, to

wit: San Joaquin Kit Fox, by discing habitat of the San

Joaquin Kit Fox, all of which is in violation of Title 16, United

States Code, Sections 1538(a)(1)(B) and 1540(b)(1), Title 50,

Code of Federal Regulations, Section 17.21(c), and Title 18,

United States Code, Section 2.

COUNT THREE: [16 U.S.C. §§ 1538(a)(1)(B) and 1540(b)

(1) and 18 U.S.C. §2 -— Unlawful Take

and Aiding and Abetting the Unlawful

Take of an Endangered Species]

The United States Attorney further charges: TH A T

WANG LIN COMPANY, INC.

AKA: WANG LIN FARMS CO., INC.

defendant herein, between on or about February 12, 1994, and

on or about February 14, 1994, in the County of Kern, State

and Eastern District of California, did knowingly take and aid

and abet the taking of an endangered species of wildlife, to

wit: Blunt-nosed Leopard Lizard, by discing habitat of the

Blunt-nosed Leopard Lizard, all of which is in violation of

Title 16, United States Code, Sections 1538(a)(1)(B) and

1540(b)(1), Title 50, Code of Federal Regulations, Sec-

tion 17.21(c), and Title 18, United States Code, Section 2.

oor

C-3

DATED: January 12, 1995

Respectfully Submitted,

CHARLES J. STEVENS

United States Attorney

By: /S/

KAREN A. KALMANIR

Assistant U.S. Attorney