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

OCTOBER TERM, 1994

BrRucE BABBITT, SECRETARY OF THE INTERIOR, ef al.,

‘ Petitioners,

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 THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA;

THE FOUNDATION FOR ENVIRONMENTAL

AND ECONOMIC PROGRESS, INC.;

THE COUNTY OF KERN, CALIFORNIA;

THE KERN COUNTY WATER AGENCY;

THE NATIONAL ASSOCIATION OF REALTORS®;

THE OREGON ASSOCIATION OF REALTORS®; AND

THE NATIONAL ASSOCIATION OF INDUSTRIAL

AND OFFICE PROPERTIES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Of Counsel: Vircini S. ALBRECHT *

RoBIN S. CONRAD THOMAS C. JACKSON

NATIONAL CHAMBER LITIGATION MICHELLE A. WENZEL

CENTER, INC. JOSHUA S. WYNER

1615 H Street, N.W. BEVERIDGE & DIAMOND, P.C.

Washington, D.C. 20062 1350 I Street, N.W.

(202) 463-5837 Washington, D.C. 20005

i (202) 789-6000

(Of Counsel continued Counsel for Amici Curiae

on Inside Cover) * Counsel of Record

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

a

| BESTAVAILABLE COPY | fam

TED R. BROWN

FOUNDATION FOR ENVIRONMENTAL

AND ECONOMIC PROGRESS, INC.

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 347-3377

JOHN F. STOVALL

KERN COUNTY WATER AGENCY

3200 Rio Mirada Drive

Bakersfield, CA 93308

(805) 634-1400

RALPH W. HOLMEN

NATIONAL ASSOCIATION OF REALTORS®

430 North Michigan Avenue

Chicago, IL 60611

(312) 329-8270

BESTAVAILABLE COPY.

TABLE OF CONTENTS

Page

FABLE OF AUTHORITIES ........-.--...cc-cecccissecescsssenicteess iii

INTEREST OF AMICI CURIAE ............22222.-22.22:0200------- 2

STATEMENT OF THE CASE ...20000..2..2.2....:csecsseceeeeeeees 6

SUMMARY OF ARGUMENT ...............--.-..-..0:sccc-c.00. 6

gE Sea a ee ee 8

I. THE LANGUAGE AND STRUCTURE OF

THE ESA MAKE CLEAR THAT CONGRESS

DID NOT INTEND FOR “TAKE” TO IN-

CLUDE THE CONCEPT OF HABITAT MOD-

I ici rhclnntantemivininiiasanstcitensintinnsnnineronscneriens 8

A. The Language of the ESA Demonstrates

That Habitat Modification Is Not a Pro-

hibited Act Under Section 9 ..000.....000000.2.cooe.. 8

B. The Structure of the ESA Demonstrates

That Habitat Modification Is Not a Pro-

hibited Act Under Section 9 _......000..0000000002.... 16

C. Incantations of Broad Statutory Purposes

Cannot Justify an Administrative Interpre-

tation That Violates Congressional Intent.... 18

II. BECAUSE CONSTITUTIONAL PRINCIPLES

REQUIRE THAT CONGRESS DEFINE

CRIMES SO AS TO PUT AFFECTED PAR-

TIES ON NOTICE, ANY AMBIGUITY IN

THE STATUTE MUST BE RESOLVED

AGAINST AN FWS' INTERPRETATION

THAT EXPANDS CRIMINAL LIABILITY.... 20

A. In Interpreting Ambiguous Statutory Pro-

visions, the Weight Accorded to Agency

Views Will Depend on a Number of Factors.. 20

B. The Principle of Separation of Powers Re-

quires That Congress, Not Administrative

TI, TD. CII scan cetteccctsesecceercccssee 21

ii

TABLE OF CONTENTS—Continued

Page

C. In the Face of Ambiguity in a Criminal

Statute, the Court Must Apply the Rule of

Lenity and Adopt a Narrow Interpretation.. 23

D. FWS’s Claims to Deference Must Be Re-

iii

TABLE OF AUTHORITIES

CASES: Page

Aluminum Co. v. Central Lincoln Peoples’ Utility

District, 467 U.S. 380 (1984) ....................-cecceesees 29

Aurora Packing Co. v. NLRB, 904 F.2d 73 (D.C.

Ca TED access icincccincscsncmnasineailapninnaennceiiiuniihipiitemamedtiniiaats 28

Bell v. United States, 349 U.S. 81 (1955)................ 29

Board of Governors v. Dimension Finance Corp.,

PRs S| Rs eee ee 19

Chapman v. United States, 500 U.S. 453 (1991)... 29

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

Council, Inc., 467 U.S. 837 (1984) ................--. 6, 8, 20, 28

Colautti v. Franklin, 489 U.S. 379 (1979) -..........- 15

Crandon v. United States, 494 U.S. 152 (1990).... 8, 22,

26, 29

Dole v. United Steelworkers, 494 U.S. 26 (1990).. 13

Geer v. Connecticut, 161 U.S. 519 (1896), over-

ruled in part by Hughes v. Oklahoma, 441 U.S.

SD baciccvsncsnnieiictnndessernedaasdienlaneniiiiendnaidianaonae 9,10

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)........ 8

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

CI siicnncsensnstcecsevtessonaconneieneniensbicannnnnnsumeaiiaiatantes 16

Ladner v. United States, 358 U.S. 169 (1958)........ 24

Landreth Timber Co. v. Landreth, 471 U.S. 681

II sivescdsnctaccicceecaaciionpccssaleenadannlapashaanantadtaiantticn 8

Liparota v. United States, 471 U.S. 419 (1985) .... 26

Mackey v. Lanier Collection Agency & Service,

ee kt Bk, erin oe 18

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .... 11

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

DIT --s sessonnccuapeneindeaciannie<cethanehenaseinddeentdbieheicaneetaes 17

Perrin v. United States, 444 U.S. 37 (1979) ........... 11, 29

Rodriguez v. United States, 480 U.S. 522 (1987).... 18

Russello v. United States, 464 U.S. 16 (1988)........ 17

Smith v. United States, 113 S. Ct. 2059 (1993) .... 29

Sweet Home Chapter of Communities for a Great

Oregon v. Babbitt, 30 F.8d 190 (D.C. Cir.

I xccirasscorsneanacsastpestommeieenarcstesenielaslasacseia naeaeasinlataiaataiaiaiin 22

United States v. Bass, 404 U.S. 336 (1971) ............. 24, 26

United States v. Fisher, 6 U.S. (2 Cranch) 358

CIS a. sssiconnccosnisstcscouiictsceresneonsaatenhseieiapipialuaninaseaaisiammnt aad 26

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Hayashi, 22 F.3d 859 (9th Cir.

ST tneiceilitinscdictnsndeseitesciitesniesniicniecstllaansihabetiniahdcsipbabdbanicciivons 13

United States v. Koemineki, 487 U.S. 931 (1988) .... 22, 24,

29

United States v. McGoff, 831 F.2d 1071 (D.C. Cir.

SITIEET - wistaisicallethabdicidasebuiesdatennshdiiedinibalcialiiaddilaasbidiieidlscennteakens 27

United States v. Naftalin, 441 U.S. 768 (1979) . 17

United States v. Nguyen, 916 F.2d 1016 (5th Cir.

Ta a aids 25, 26

United States v. Robel, 389 U.S. 258 (1967) .......... 23

United States v. Thompson/Center Arms Com-

pany, 112 S. Ct. 2102 (1992) .........0 22, 24, 25, 26

United States v. X-Citement Video, Inc., 115 S. Ct.

Nese dcconsiadlalings 26

CONSTITUTIONAL PROVISIONS:

sense nonnsdembisienssvanesenenegs 23

i SS | ee sae ae eas 23

RULE:

Supreme Court Rule 87 .............. eee eee eee 1

STATUTES:

Bald and Golden Eagle Protection Act

Pub. L. No. 76-567, § 4, 54 Stat. 251 (1940)

(codified as amended at 16 U.S.C. § 668c

a a 8 12

Clean Water Act

$3 U.S.C. § 1251(a) (1994) ........... PSs aA RIN 18

Endangered Species Act

16 U.S.C. §§ 1531-1544 (1994) 200. 9

16 U.S.C. § 1536(a) (2) (1994) .......00 i. 16

16 U.S.C. § 1538 (a) (1) (1994) 200000. 16

16 USL. § 16460(b) (1904) ................................. 25, 27

16 U.S.C. § 1540(b) (1) (1994) ....000 22

Fur Seal Act

16 U.S.C. § 1151(m) (1994) ............0.0.0000. 12

Marine Mammal Protection Act

16 U.S.C. § 1862(18) (1994)................................ 12

v

TABLE OF AUTHORITIES—Continued

Migratory Bird Treaty Act

16 U.S.C. § 703 (1994) ..... inilcvaptialleiaisiini

pe | 5 STE

I Be I lc Ble 0B ccecsccscccrcccsccemecscnnccecicnnesien

po 8 ee eee ee

1928 Waen: Laws ei. 90, § 4_.......................................

Ee es FN Ns Bi OO csnesccencesincnccnceernnnnnccsnnes

Se is BE Bs I OO ini easecsnsneccnnnntenccvenncemions

Rr i I Uy TE BO aia cctteinccsenssenesinsiene

pS IIR See nN

REGULATIONS:

eS Fe) ne ee

a an a I iiss cacetincactenstaecnanceseesanionins

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS:

S. 1983, 93d Cong., ist Sess. § 3(6) (A) (1973) ....

S. Rep. No. 307, 93d Cong., Ist Sess. (1973), re-

printed in 1973 U.S.C.C.A.N. 2989...

H.R. Rep. No. 412, 93d Cong., Ist Sess. 11 (1973)..

Pe FL: | a ee

TREATIES:

Agreement on the Conservation of Polar Bears,

Nov. 15, 1978, art. I, 27 U.S.T. $918 ...................

Convention on Nature Protection and Wild Life

Preservation in the Western Hemisphere, Oct.

12, 1940, art. VIII, 56 Stat. 1354, 161 U.N.T.S.

BE ei erations Seinen cass ade saes inlea saeaninranccdacnassnanassesiiesive

International Convention for the Regulation of

Whaling, Dec. 2, 1946, art. VIII, 62 Stat. 1716,

I a eee ehuenmnckais

Protocol to the International Convention for the

Regulation of Whaling, Nov. 19, 1956, art. I,

I naa a eetaiatepeleman nai

14

15

13

13, 14

12

12

12

12

vi

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS: Page

American Heritage Dictionary 1239 (2d ed. 1985).. 11

Michael J. Bean, The Evolution of National Wild-

life Law 12-17 (rev. & exp. ed. 1988) ................. 11

2 William Blackstone, Commentaries *411 ............ 10

Baron de Montesquieu, The Spirit of the Laws

151 (Thomas Nugent trans., 1966) (1949)........ 23

Webster's Third New International Dictionary

rR CERRY CREO Ee 10

U.S. General Accounting Office, GAO/RCED-95-

16, Endangered Species Act: Information on

Species Protection on Nonfederal Lands 9 (Dec.

BED ucciviernbabdnthcicaniatonasionaicis aneiaaaee aaa aaa 5

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-859

BRUCE BABBITT, SECRETARY OF THE INTERIOR, et al.,

- Petitioners,

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 THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA;

THE FOUNDATION FOR ENVIRONMENTAL

AND ECONOMIC PROGRESS, INC.;

THE COUNTY OF KERN, CALIFORNIA;

THE KERN COUNTY WATER AGENCY;

THE NATIONAL ASSOCIATION OF REALTORS®;

THE OREGON ASSOCIATION OF REALTORS®; AND

THE NATIONAL ASSOCIATION OF INDUSTRIAL

AND OFFICE PROPERTIES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

The Organizations listed above respectfully file this

brief as amici curiae in support of Respondents. Written

consent has been obtained from counsel for petitioners

and respondents for the filing of this brief pursuant to

Supreme Court Rule 37. The letters reflecting consent

have been filed with the clerk’s office.

2

INTEREST OF AMICI CURIAE

Amici represent a broad cross section of public and

private interests that have been adversely affected by the

regulatory overreach of the U.S. Fish and Wildlife Serv-

ice (“FWS”) under the Endangered Species Act (“ESA”

or the “Act”). The Chamber of Commerce of the United

States of America (“Chamber”) is the largest federation

of business, trade, and professional organizations in the

United States. The Chamber represents more than 215,000

companies, as well as several thousand trade and pro-

fessional organizations, and state and local chambers of

commerce. Ninety-six percent of the Chamber’s members

are businesses with fewer than 100 employees; seventy-

one percent of the Chamber’s members have fewer than

ten employees. A significant aspect of the Chamber’s

activities involves the representation of the interests of its

members in property rights and land use matters before

the courts, the U.S. Congress, the executive branch, and

independent regulatory agencies of the federal govern-

ment. Accordingly, the Chamber has sought to protect

those interests by participating in a variety of environ-

mental and natural resource litigation efforts.

The Foundation for Environmental and Economic

Progress, Inc. is a coalition of landowners that was

founded to address federal environmental and economic

policies affecting the use of land. The Foundation pres-

ently represents fourteen large entrepreneurial landowners

and community developers with property in forty-four

states. The ESA significantly affects Foundation mem-

bers’ use of their land.

The County of Kern is a political subdivision of the

State of California. The Kern County Water Agency is

also a political subdivison of the State of California,

created for the purpose, inter alia, of providing water

for the residents and lands throughout the County. The

Agency supplies water to municipal and industrial con-

sumers, as well as to over 300,000 acres of irrigable

land, and maintains a variety of systems for storing and

3

delivering water to its customers. The Agency and the

County’s activities have been significantly affected by

prohibitions on habitat modification under the ESA.

The National Association of Realtors® (“NAR”) is a

not-for-profit professional association comprised of ap-

proximately 750,000 persons engaged in all phases of

the real estate business. NAR was created in 1908 to,

inter alia, promote and encourage the highest and best

use of land and protect and promote private ownership

of real property. NAR includes among its members real

estate brokers, managers, appraisers, counselors, and a

variety of other participants in the residential, commer-

cial, industrial, farm, and investment real estate markets.

NAR members suffer adverse impacts when ESA prohibi-

tions delay or otherwise affect development projects. The

Oregon Association of Realtors® is a state affiliate of

NAR. Its members have been particularly affected by

federal land use controls arising out of the ESA.

The National Association of Industrial and Office

Properties (“NAIOP”) is a professional organization of

5,000 individuals engaged in owning, managing, and de-

veloping industrial and office buildings in the United

States and internationally. Its members include not only

the nation’s leading commercial real estate developers,

but also architects, brokers, master planners, engineers,

property managers, banks, insurance companies, and

other real estate financial groups. Development of in-

dustrial and office properties may be affected by regula-

tion of habitat modification under the ESA.

Amici file this brief because of the broad impact the

FWS regulation has had on a wide range of activities

undertaken by individuals, businesses, and units of local

government. Amici and their members have experienced

and are aware of numerous situations in which the activi-

ties of nonfederal parties have been substantially affected

by the prohibitions on land use arising from FWS’s

“harm” regulation.

4

The experience of a landowner in Texas is typical.

Mrs. Margaret Rodgers of Lago Vista, Texas received a

letter from FWS in 1991 informing her that clearing

of vegetation on property of which she was part owner

was destroying “prime habitat for the federally-listed en-

dangered golden-cheeked warbler.” The letter stated that

destruction of habitat may constitute a take, which “could

expose a violator to the criminal penalties provided for”

under the Act. The letter also stated that the matter was

being investigated by a Special Agent, suggesting that

Mrs. Rodgers might be the subject of a criminal prosecu-

tion for clearing some vegetation. Little imagination is

needed to envision the chilling effect of such a letter on

ordinary activities that might affect habitat regardless of

the presence of any golden-cheeked warblers.

The Kern County Water Agency had a similar experi-

ence. The Agency and the California Department of

Water Resources (“DWR”) proposed construction of a

joint water project, called the “Kern Water Bank,” on a

20,000-acre area southwest of Bakersfield, California.

The proposal called for the conversion of 17,000 acres

of agricultural land to a multi-use facility for ground-

water overdraft correction, underground water storage

for drought protection, community recreational use, and

wildlife habitat.

After the agricultural land was fallowed to conserve

water, which had the unintended effect of making the

land suitable habitat for the blunt-nosed leopard lizard

and the Tipton kangaroo rat, FWS, acting with and

through the California Department of Fish and Game,

began to demand dedication of thousands of acres for the

protected species. The agencies asserted that modifica-

tion of the newly fallowed land was a criminally pro-

hibited “take” under the ESA. Negotiation of a Habitat

Conservation Plan (“HCP”) for the species began in

1991, and the most recent demands of the wildlife agen-

cies are for the set-aside of three acres of habitat for

every acre used by the project. DWR is now selling

the project to the Kern County Water Agency, which is

5

reevaluating the project to determine if it continues to be

economically feasible after more than three years of pro-

tracted and expensive negotiations.’

The Kern County Water Agency experienced further

ESA-induced hardship when, in 1991, the Agency was

confronted with the most serious emergency of its three

decades of existence. Of the Agency’s 1,154,000 acre-

feet of agricultural waters entitlement from the Califor-

nia State Water Project, the Agency received zero acre-

feet, i.e., no water. Without water, over 100,000 acres

of permanent crops, consisting of orchards and vineyards,

were at risk of destruction. Annual crops planned for

hundreds of thousands of acres of land were also threat-

ened due to the drought. Destruction of the annual

crops would terminate an income stream having a present

value of billions of dollars. To avoid these results, the

Agency's plan was to refurbish existing water wells and

drill new water wells to extract water banked in the un-

derground basin. However, the endangered blunt-nosed

leopard lizard was discovered in the vicinity of the Agen-

cy’s wells. The Department of Fish and Game informed

DWR officials that the proposed refurbishing and drilling

activities would disturb the ground around the well areas

and. as such, could result in a “taking” of an endangered

species under the ESA. Fearing criminal prosecution, the

DWR delayed the project so that trapping of the lizard

1The Water Agency’s difficulty in negotiating an acceptable

HCP, which is a prerequisite to obtaining an “incidental take”

permit for otherwise lawful activities, demonstrates that the ESA’s

“escape valve” for property owners affected by Section 9 prohibi-

tions is wholly inadequate. A recent study reported that up to

three years is needed to develop and gain the FWS’s approval of

an HCP. U.S. General Accounting Office, GAO/RCED-95-16, En-

dangered Species Act: Information on Species Protection on Non-

federal Lands 9 (Dec. 1994). The experience of amici has been

that this process can last longer than three years, with only a

small likelihood that the process will actually yield a permit. The

result is that for all but the most tenacious, the ESA makes it

well nigh impossible for landowners to realize beneficial use of

their land.

6

could determine its habitat. Fear of prosecution for per-

fectly reasonable behavior resulted in thousands of acre-

feet of waters unpumped and thousands of acres of crops

destroyed.

These examples show that the FWS interpretation be-

ing challenged has affected both public projects and pri-

vate land use. Out of fear that they may be criminally

prosecuted, public agencies and private property owners

have been forced to forgo or delay projects at consider-

able expense, while untold acres have been effectively

taken by the federal government through the land use

authority FWS has assumed by virtue of its “harm”

regulation.

STATEMENT OF THE CASE

Amici adopt the statement of the case contained in the

Brief for Respondents.

SUMMARY OF ARGUMENT

This case concerns the validity of a federal regulation

that has subjected a multitude of private and state and

local government land use activities—from grading land

to mowing grass—to federal control and exposed those

engaging in such activities to potential criminal liability.

Section 9 of the Endangered Species Act of 1973 makes

it unlawful for any person to “take” endangered species

of fish or wildlife. While “take” is defined in the statute

to include “harm,” the word “harm” is not defined in the

ESA. Pursuant to the Act, FWS promulgated a regula-

tion that defines “harm” in a manner that prohibits habi-

tat modification by nonfederal actors, thereby making

habitat modification a potentially criminal act. The

question before this Court is whether the FWS regula-

tion is consistent with Congress’ intent in enacting Sec-

tion 9.

In reviewing an agency interpretation of a statutory

provision, the Court must give effect to Congress’ intent

when that intent is clearly expressed. Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 n.9 (1984). There is no ambiguity in the

a a ef

7

ESA; the language and structure of the Act establish that

Congress intended to place the burdens associated with

habitat protection only on federal actors. Thus, the FWS

rule expanding “take” to prohibit habitat modification by

private parties and other nonfederal entities is inconsist-

ent with the clearly expressed intent of Congress and

must be rejected.

Even if the Court were to determine that Congress

did not express its intent on this issue, the rules of statu-

tory construction appropriate to this case would lead to

the same result. The regulation at issue expands poten-

tial criminal liability by making habitat modification a

prohibited act. But administrative agencies, which en-

force the laws, may not also make those laws. That

way lies tyranny. Instead, under the separation of powers

principles embodied in our Constitution, Congress, not

the agencies or the courts, defines what behavior will be

subject to criminal sanctions.

Moreover, FWS’s rule criminalizes ordinary conduct

(e.g., mowing the lawn) without providing notice to citi-

zens that such conduct may be deemed criminal. Due

process demands more: crimes must be defined clearly.

Where Congress’ intention is not clear, this Court has

employed the rule of lenity to construe ambiguous statu-

tory provisions to limit potential criminal liability and

avoid due process concerns. Thus, the agency’s claims

to deference must be rejected and the FWS regulation

invalidated. This Court should not allow citizens to be

“deferred” into prison.

8

ARGUMENT

I. THE LANGUAGE AND STRUCTURE OF THE ESA

MAKE CLEAR THAT CONGRESS DID NOT IN-

TEND FOR “TAKE” TO INCLUDE THE CONCEPT

OF HABITAT MODIFICATION.

The question presented in this case is one of statutory

interpretation. In such cases, the traditional tools of

statutory construction—language, structure, and legisla-

tive history—are used to determine the meaning of the

statute. Crandon v. United States, 494 U.S. 152, 158

(1990); INS v. Cardoza-Fonseca, 480 U.S. 421, 432

n.12 (1987). If the intent of Congress is clearly ex-

pressed, then a reviewing court must give effect to that

intent. Chevron, 467 U.S. at 843 n.9.

As demonstrated below, the intent of Congress in using

the words “take” and “harm” in the ESA is clear. The

language and structure of the Act reflect an intent in

Section 9 to proscribe traditional “takes”—intrusive acts

targeted at specific individual members of protected

species-——and not to proscribe habitat modification, even

where such modification may ultimately harm a species.

Instead, habitat modification was addressed through Sec-

tion 7, which regulates the conduct of federal actors

(and through them, their licensees). The Court should

give effect to Congress’ intent by striking down FWS’s

regulatory definition of “harm” in 50 C.F.R. § 17.3 as

inconsistent with the ESA.

A. The Language of the ESA Demonstrates That Habi-

tat Modification Is Not a Prohibited Act Under

Section 9.

“*The starting point in every case involving construc-

tion of a statute is the language itself.” Landreth Tim-

ber Co. v. Landreth, 471 U.S. 681, 685 (1985) (quot-

ing Blue Chip Stamps v. Manor Drug Stores, 421 USS.

723, 756 (1975) (Powell, J., concurring)). In enacting

the ESA in i973, Congress created a conservation pro-

gram for endangered and threatened species of flora and

9

fauna and their habitats. See 16 U.S.C. §§ 1531-1544

(1994). The principal features of that conservation pro-

gram as it relates to domestic species are found in three

sections of the Act. Sections 5 and 7 are directed to fed-

eral agencies. Section 5 authorizes FWS to acquire habi-

tat for endangered and threatened species. 16 U.S.C.

§ 1534. Section 7 requires federal agencies to exercise

their authorities to promote the conservation of listed

species and to ensure that their actions are not likely to

jeopardize the continued existence of such species or to

modify designated habitat. 16 U.S.C. § 1536. Section 9,

on the other hand, applies to all persons. It prohibits

individuals from engaging in a variety of activities, in-

cluding trade in protected species. 16 U.S.C. § 1538.

Section 9 also prohibits another class of acts pertaining

to fish and wildlife species, which Congress summed up

in the word ‘take.” 16 U.S.C. $ 1538(a)(1)(B)-(C).

In choosing that word, Congress invoked a venerable lin-

guistic tradition.

For centuries, “take” had been used in English and

American jurisprudence and common parlance to describe

human efforts to subdue wild animals. The earliest ref-

erences to the “taking” of wild creatures demonstrate, via-

context, that the word “take” signified direct, intrusive

human activities targeted at particular animals that re-

sulted in reducing those animals to possession. An Eng-

lish translation of the Justinian Code stated, “‘[A]ll the

animals which can be taken upon the earth, in the sea, or

in the air,—that is to say, wild animals,—belong to

those who take them, . . . because that which belongs to

nobody is acquired by the natural law by the person

who first possesses it.’”° Similarly, in his commentary

on property, Blackstone wrote, “[B]y the law of nature

every man, from the prince to the peasant, has an equal

* Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest

of Justinian, Dig. bk. 41, tit. 1, De Adquir. Rer. Dom.), overruled

in part by Hughes v. Oklahoma, 441 U.S. 322 (1979).

10

right of pursuing, and taking to his own use, all such

creatures as are ferae naturae.” *

This understanding of “take” as meaning human

activities directed at particular members of a species

resulting in possession was incorporated into numerous

early state fish and wildlife statutes. Those statutes aug-

mented the word’s meaning by associating the term

“take” with a multitude of other terms related to hunting

and fishing activities.‘ By the time the word passed into

contemporary usage, many of the hunting and fishing

terms had, in the context of fish and wildlife activities,

become synonymous with “take.” ° It was natural, there-

3 2 William Blackstone, Commentaries *411.

4 See, e.g., 1833 Md. Laws ch. 254, $1 (prohibiting taking or

catching of oysters “ ‘with a scoop or drag, or any other instru-

ment than such tongs and rakes as are now in use’”’) (quoted in

Smith v. Maryland, 59 U.S. (18 How.) 71, 73 (1855) ); 1886 Mass.

Acts ch. 192, §1 (prohibiting drawing, setting, stretching, or

using of any drag net, set net or gill net, purse or sweep seine of

any kind, for taking fish); 1920 La. Acts No. 185 (prohibiting

taking of fur-bearing animals and alligators except during open

season) ; 1923 Wash. Laws ch. 90, § 4 (prohibiting fishing or tak-

ing for sale or profit any salmon or other food or shellfish; defin-

ing “fishing” as “catching or taking of food fish with any appli-

ance, gear or trap, floating or fixed, whatsoever”); 1926 La. Acts

No. 103, §§ 4, 5, 18 (regulating taking and reduction to private

ownership of shrimp); 1945 Cal. Stat. ch. 181 (persons who use,

operate, or assist in using or operating any boat, net, trap, line,

or other appliance to take fish, mollusks, or crustaceans for profit

must procure a commercial fishing license); 1947 Mont. Laws ch.

224, §5 (“No game birds cr game or fur-bearingeanimals shall be

killed, taken or hunted from an aeroplane, nor shall any aeroplane

be used for the purpose of concentrating, pursuing, driving, rally-

ing or stirring up any game or migratory birds, game or fur-

bearing animals.’’) ; see also Geer, 161 U.S. at 527 (“The practice

of the government of England from the earliest time to the pres-

ent has put into execution the authority to control and regulate

the taking of game.’”’).

5 As commonly defined today, “take” means “to get possession

(as fish or game) by killing or capturing,” Webster’s Third New

International Dictionary 2330 (Merriam 1981), or “[t]o get into

one’s possession by force, skill, or artifice, esp.: . . .[t]o kill, snare,

a ee

11

fore, for Congress to reach for the word “take” when

wildlife conservation began to emerge as an issue of

national concern and Congress was called on to craft

protective legislation. Indeed, in its earliest effort to ar-

ticulate its own set of prohibitions with respect to fish

and wildlife—the Migratory Bird Treaty Act of 1918

(“MBTA”)—Congress chose to prohibit activities that

would “take” or “attempt to take” species. See 16 U.S.C.

§$ 703 (1994),

When Congress enacts a law, its familiarity with the

common meaning of the words it uses is presumed. See

Perrin v. United States, 444 US. 37, 42 (1979) (“A

fundamental canon of statutory construction is that, unless

otherwise defined, words will be interpreted as taking

their ordinary, contemporary, common meaning.”). Simi-

larly, it is presumed that Congress is knowledgeable about

existing law pertinent to the legislation it enacts. Miles

v. Apex Marine Corp., 498 U.S. 19, 32 (1990). There-

fore, as it began to fashion legislation to protect wild

animals, Congress was undoubtedly aware of the ordinary

meaning of “take” and its long-established use in state

fish and wildlife statutes (i.e., as “hunt,” “fish,” “cap-

ture,” “kill,” or other terms that convey the notion of

intrusive human activity directed at particular members

of fish or wildlife species and resulting in possession ) .®

Thus, in the MBTA, Congress made it unlawful for

any person to “pursue, hunt, take, capture, kill, [or]

attempt to take, capture, or kill” any migratory bird.

16 U.S.C. § 703. In using the term “take” as well as

“attempt to take” in associaton with “pursue,” “hunt,”

“capture,” and “kill,” Congress was using “take” in a

manner consistent with its common meaning, i.e., to

or trap (fish or game, for example).” American Heritage Diction-

ary 1239 (2d ed. 1985).

®Given that Congress was moving into an area typically re-

served to the states, see, e.g., Michael J. Bean, The Evolution of

National Wildlife Law 12-17 (rev. & exp. ed. 1983), congressional

action would undoubtedly have been informed by state statutes

reflecting the long state experience in this area.

12

describe an action that is direct, intrusive, and targeted

at a particular animal or group of animals.‘

In later statutes, Congress began to use the term

“take” to cover the range of related activities it intended

to prohibit, always defining the term in accordance with

its original understanding of the core meaning of the

word, i.e., intrusive actions directed at particular animals

that typically, although not necessarily, would result in

possession. In the Bald and Golden Eagle Protection Act

of 1940, Congress defined “take” as “pursue, shoot, shoot

at, wound, kill, capture, trap, collect, or otherwise will-

fully molest or disturb.” Pub. L. No. 76-567, § 4, 54

Stat. 251 (1940) (codified as amended at 16 U.S.C.

§ 668c (1994)). In the Fur Seal Act of 1966 and the

Marine Mammal Protection Act of 1972, Congress de-

fined “take” as “harass, hunt, capture, or kill, or attempt

to harass, hunt, capture, or kill.” 16 U.S.C. $§ 1151(m),

1362(13) (1994). In these statutes, Congress used a

variety of different terms to define “take.” adding words

such as “molest,” “disturb.” and “harass” to more tradi-

tional forms of take, such as “kill,” “hunt,” and “capture.”

However, the concepts embodied in all of the terms

7™FWS has defined “take” for purposes of the MBTA in a man-

ner that reflects this common notion of the term. See 50 C.F.R.

§ 10.13 (1994) (defining “take” as “pursue, hunt, shoot, wound,

kill, trap, capture or collect,” or attempts to engage in such con-

duct). This same understanding of “take” is also reflected in

several international agreements to which the United States became

signatory in the decades following enactment of the MBTA. See,

e.g., Convention on Nature Protection and Wild kBife Preservation

in the Western Hemisphere, Oct. 12, 1940, art. VIII, 56 Stat. 1354,

161 U.N.T.S. 193 (hunting, killing, capturing, or taking of species

allowed only with permission of each country’s government) ; In-

ternational Convention for the Regulation of Whaling, Dec. 2,

1946, art. VIII, 62 Stat. 1716, 161 U.N.T.S. 72; Protocol to the

International Whaling Convention, Nov. 19, 1956, art. I, 10 U.S.T.

952, 953 (regulating hunting, taking, killing, towing, holding on

to, or scouting for whales by use of aircraft, helicopter, or ship) ;

Agreement on the Conservation of Polar Bears, Nov. 15, 1973, art.

I, 27 U.S.T. 3918, 3921 (defining “taking” as “hunting, killing,

and capturing”). None of these treaties define “take” to include

habitat modification.

13

chosen by Congress to define “take” in the fish and wild-

life context were compatible with Congress’ consistent

use of the word over the course of fifty years; they all

involve direct, intrusive interaction between a human and

a specific animal.* Thus, while Congress added variations

on a theme, it did not add wholly new and dissonant

elements; rather, Congress consistently used the term

“take” in a manner that accorded with its traditional and

commonly understood meaning.

When Congress enacted the ESA in 1973, it again

used the term “take” as the operative term to describe

prohibited acts. In this case, Congress added another

variant, “harm,” to the “take” definition. Congress did

not define “harm” or, indeed, any of the words that make

up the ESA “take” definition. Certainly, in the absence

of explicit congressional direction to the contrary, there

is no evidence to suggest that Congress intended, through

the addition of the word “harm,” to depart completely

from the core meaning of the word ‘take” as Congress

understood it. See Dole v. United Steelworkers, 494 U.S.

26, 36 (1990) (“‘[W]ords grouped in a list should be

given related meaning.’”) (citations omitted). In fact,

8 For instance, “harass” has been defined in the Marine Mam-

mal Protection Act to invelve this same core concept of direct,

intrusive interaction directed at a particular animal or animals.

See United States v. Hayashi, 22 F.3d 859, 864 (9th Cir. 1993)

(to constitute a “take,” “harassment” must entail direct intrusion

that is similar in significance to killing, capturing, or hunting;

the harassment must be a serious and sustained diversion of a

marine mammal from its natural routine): see also 46 Fed. Reg.

29,490, 29,491 (1981) (Interior Department Office of the Solicitor

opinion that “harass” represents a form of conduct that is “di-

rected against and likely to injure or kill individual wildlife’).

There is evidence that Congress understood the term in a sim-

ilar vein in the ESA, as demonstrated by the committee statement

that birdwatching could constitute harassment under certain cir-

cumstances. See H.R. Rep. No. 412, 93d Cong., 1st Sess. 11 (1973).

Such an activity involves an intrusive interaction with a bird that

would affect the bird in a very direct fashion. In normal usage,

“molest” and “disturb” embody the same notion.

14

as discussed below, the evidence is very much to the con-

trary.”

Construing the word “harm” to mean “modify habitat,”

as the FWS has done, see 50 C.F.R. § 17.3, would result

in just such a departure in the meaning of “take.” Habitat

modification is logically inconsistent with Congress’ over-

arching choice of the word “take” as the focal point of

Section 9 prohibited acts. Habitat modification activities

such as cutting a tree or mowing a field are not targeted

at individual members of fish or wildlife species. Nor do

they, as a necessary component, involve direct, intrusive

interactions with particular individuals. FWS’s interpre-

tation, however, sweeps broadly to include within the

ambit of “take” a wide range of activities that would

“harm” endangered animals only indirectly by, for in-

stance, prompting an animal to feed in a different area.

Such activities do not involve direct, intrusive interaction

between a human and an animal. Thus, habitat modifica-

tion differs in kind from all other activities previously

defined as “take.” It strains credulity to believe that Con-

gress—knowing full well the common meaning of “take”

—would have chosen the term “harm” to make a quantum

leap in the traditional meaning of “take,” particularly

when “harm” can easily be read in a manner fully con-

sistent with the accepted meaning of “take.”

In the face of the long history of the term “take,” the

government makes much of a Senate committee report on

9 See infra Part I.B. The legislative hisfory provides further

evidence that Congress intended to exclude habitat modification

from the definition of “take.” Senate Bill No. 1983, which, as

amended, ultimately became the ESA, originally specified “de-

struction, modification, or curtailment of habitat or range” as

part of the definition of “take.” See S. 1983, 93d Cong., 1st Sess.

$3(6)(A) (1973). This provision was deleted from the final

act during committee markups. “Such deletions generally militate

against a conclusion that Congress intended a result that it ex-

pressly declined to enact.” 46 Fed. Reg. at 29,491 (citing Gulf Oil

Corp. v. Copp Paving Co., 419 U.S. 186 (1974)) (Interior Depart-

ment Office of the Solicitor memorandum opinion on the FWS’s

“harm” regulation).

15

an early version of the ESA that stated, “‘[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. 307,

93d Cong., Ist Sess. 7 (1973), reprinted in 1973

U.S.C.C.A.N. 2989, 2995; see Brief for Petitioners at 16,

27-28; Petition for Writ of Certiorari at 15-16. That

statement is unremarkable, however. Congress clearly

intended to incorporate many different types of efforts to

subdue species into the ESA “take” definition. As illus-

trated by the pre-ESA fish and wildlife statutes, the “con-

ceivable ways” of reducing members of a species to human

possession are extremely diverse. They include not only

such common actions as shooting a creature with a gun

Or an arrow or catching a fish with hook and line, but

also such activities as netting, baiting, luring, clubbing,

poaching, poisoning, spraying, raking, knifing, spearing,

scooping, dragging, purse-seining, harpooning, rounding

up, and harvesting.*® But they do not include habitat

modification.

FWS’s inclusion of habitat modification in the definition

of “harm,” and thus in the definition of “take,” would dis-

tort beyond recognition the latter word’s long-established

meaning. In light of the fact that Congress chose not to

add the words “modify habitat” to the ESA definition, it

is clear that Congress did not intend an expansive interpre-

tation that is at such variance with contemporaneous un-

derstandings of the term “take.” See Celautti v. Frank-

lin, 439 U.S. 379, 392 n.10 (1979) (“As a rule, ‘[a]

definition which declares what a term “means” .. . ex-

10 See, €.g., supra notes 4, 7.

11 The same Senate report that described Congress’ use of the

term “take” to include all “conceivable ways” an animal can be

taken also stated that an “accelerated land acquisition program

is essential” because “[o]ften, protection of habitat is the only

means of protecting endangered animals which occur on non-public

lands.” S. Rep. No. 307 at 4, reprinted in 1973 U.S.C.C.A.N. at

2992. This confirms that the 1973 Congress perceived “take” and

habitat destruction to address conceptually different problems.

16

cludes any meaning that is not stated.””) (quoting 2A

C. Dallas Sands, Statutes and Statutory Construction

§ 47.07 (4th ed. Supp. 1978).

B. The Structure of the ESA Demonstrates That Habi-

tat Modification Is Not a Prohibited Act Under

Section 9.

“In ascertaining the plain meaning of [a] statute, [a]

court must look to... the language and design of the

statute as a whole.” K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988). The structure of the ESA provides

conclusive evidence that Congress intended for “take” to

cover a specific set of concepts that does not reach habitat

modification. .

In enacting the ESA, Congress was aware of the im-

portance of protecting habitat for endangered species. To

address this issue and others, Congress designed a multi-

faceted species protection program that places distinctly

different responsibilities on federal and nonfederal actors.

Under Section 7(a)(2), federal agencies must ensure

that their actions will not be likely to adversely modify

critical habitat.” 16 U.S.C. § 1536(a)(2). In contrast,

Section 9, which applies to all parties in all circum-

stances, does not forbid the modification of habitat, crit-

ical or otherwise, but instead prohibits the “taking” of

fish and wildlife species. 16 U.S.C. § 1538(a)(1). In

sum, the only statutory provision that specifically ad-

dresses habitat issues relates explicitly to federal actors,

while the statutory provision that reaches nonfederal par-

ties is silent as to habitat modification.

FWS’s definition of “harm” threatens to undermine this

carefully considered structure. “‘[W]here Congress in-

cludes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

12 Section 7(a) (2) may affect nonfederal actor3 in certain lim-

ited circumstances where those actors are federally funded or

permitted, but the affirmative obligation to avoid modifying critical

habitat remains assigned to the federal agency overseeing the

private action.

17

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.’” Russello v. United

States, 464 U.S. 16, 23 (1983) (quoting United States v.

Wong Kim Bo, 472 F.2d 720, 722 (Sth Cir. 1972)). If

Congress had wished to regulate habitat modification ac-

tivities by federal and nonfederal parties, it could easily

have done so by inserting such a prohibition in the Section

9 definition of “take” or elsewhere. However, as the

Court has said, “The short answer is that Congress did

not write the statute that way.” United States v. Naftalin,

441 U.S. 768, 773 (1979). Instead, Congress explicitly

incorporated habitat modification only in the protections

provided by Section 7(a)(2). It is clear, then, that Con-

gress did not mention habitat modification in the context

of regulating nonfederal activities because Congress did

not intend, under Section 9 of the ESA, to enact a broad

prohibition on habitat modification.

Furthermore, the FWS interpretation would render Sec-

tion 5 and the critical habitat provision of Section 7(a)

(2) of little moment. The federal government has scant

incentive to purchase important habitats if it can achieve

the same result (protection of habitat and thus species),

cost free, under Section 9.‘* Moreover, there would be no

need to invoke Section 7(a)(2)’s prohibition against ad-

versely modifying critical habitat if such modification were

already prohibited under Section 9. The effect is essenti-

ally to read out of the statute the only provision in which

Congress specifically precluded habitat modification by en-

dorsing an expansive interpretation of a provision that is

silent as to habitat modification. Statutory terms should

be interpreted so that no part of the statute will be ren-

18 This Court has long been concerned about agencies’ attempts to

achieve their goals by placing burdens on selected individuals rather

than spreading the cost of achieving public goals to ensure that

the public bears the burden. See, e.g., Pennsylvania Coal Co. v.

Mahon, 260 U.S. 398, 416 (1922) (“[A] strong public desire to

improve the public condition is not enough to warrant achieving

the desire by a shorter cut than the constitutional way of paying

for the change.’’).

18

dered superfluous by another part of the same statute.

Mackey v. Lanier Collection Agency & Serv., Inc., 486

U.S. 825, 837 (1988). Thus, to preserve Congress’

intent in enacting Sections 5 and 7(a)(2), the “harm”

regulation should be invalidated.

C. Incantations of Broad Statutory Purposes Cannot

Justify an Administrative Interpretation That Vio-

lates Congressional Intent.

The government claims that FWS’s reading of the stat-

ute is justified because it advances a goal of the ESA—

protection of endangered species’ habitats. Brief for Peti-

tioners at 17. However, appeals to the broad purposes of

the Act are misplaced, for they ignore the compromises

that underlie any congressional scheme:

But no legislation pursues its purposes at all costs.

‘Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective

is the very essence of legislative choice—and it

frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the

Statute’s primary objective must be the law. Where,

as here, “the language of a provision . . . is suffi-

ciently clear in its context and not at odds with the

legislative history, . . . ‘[there is no occasion] to

examine the additional considerations of “policy” .. .

that may have influenced the lawmakers in their

formulation of the statute.’ ”

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)

(per curiam) (quoting Aaron v. SEC, 446 U.S. 680, 695

(1980) ).

Indeed, federal environmental statutes uniformly cite

protection of the environment as a goal. See, e.g., Clean

Water Act, 33 U.S.C. § 1251(a) (1994) (goal of Act is

to restore and maintain physical, chemical, and biological

integrity of nation’s water). However, each statute is

drafted to reflect a balance between the protective goal

and the societal costs associated with meeting that goal.

sn an ma

19

Thus, the Clean Water Act allows the discharge of regu-

lated amounts of pollutants; the Resource Conservation

and Recovery Act allows waste generation and disposal

as long as certain waste management procedures are fol-

lowed; and the Toxic Substances Control Act permits the

manufacture of toxic substances as long as the amounts

manufactured are recorded and reported.

When it considered how to treat habitat modification

in the ESA, Congress affirmatively balanced the compet-

ing interests of protecting species’ habitats and limiting

the economic costs associated with such protection. While

certain burdens are imposed on nonfederal parties with

respect to trade in endangered species and hunting, col-

lecting, and other forms of taking species, Congress

placed the burden of habitat protection on federal parties.

The government attempts to upset the balance struck by

Congress in the ESA by making policy through the regu-

latory process and justifying it through a misleading in-

vocation of congressional goals.

If FWS and its amici believe that it would be advisable

to expand the scope of activities subject to regulation

under Section 9, the only way to effectuate such a change

is to ask Congress to amend the ESA. As the Court has

stated:

The statute may be imperfect, but the [agency] has

no power to correct flaws that it perceives in the

Statute it is empowered to administer. Its rulemak-

ing power is limited to adopting regulations to carry

into effect the will of Congress as expressed in the

Statute.

Board of Governors v. Dimension Fin. Corp., 474 U.S.

361, 374 (1986). Policy changes should be reserved for

congressional action, and the FWS restricted to its con-

Stitutional role: implementing the ESA as enacted by

Congress.

20

II. BECAUSE CONSTITUTIONAL PRINCIPLES RE-

QUIRE THAT CONGRESS DEFINE CRIMES SO

AS TO PUT AFFECTED PARTIES ON NOTICE,

ANY AMBIGUITY IN THE STATUTE MUST BE

RESOLVED AGAINST AN FWS INTERPRETA-

TION THAT EXPANDS CRIMINAL LIABILITY.

The ESA is clear. The statute prohibits habitat modi-

fication by federal actors but not by private or other non-

federal actors. Thus, under well-settled principles of

statutory construction, the Court should give effect to

congressional intent and set aside the FWS regulation.

Even if the Court were to find the statute ambiguous

on this point, it should nonetheless reject the FWS inter-

pretation. The ESA is a criminal statute and the FWS

regulation criminalizes ordinary conduct without provid-

ing notice to those who are subject to its prohibitions.

In this circumstance, constitutional principles of separa-

tion of powers and due process dictate that any ambiguity

in the definition of “take” should be resolved in a man-

ner that limits potential criminal liability.

A. In Interpreting Ambiguous Statutory Provisions,

the Weight Accorded to Agency Views Will Depend

on a Number of Factors.

Ambiguous statutory provisions that are administered

by an expert agency and that have civil and criminal

applications raise a unique problem for reviewing courts.

An agency that is delegated rulemaking authority by

Congress plays an important interpretive role in certain

situations. Where a particular application of a technical

statutory provision has not been considered by Congress,

agencies with expertise in the subject matter of the stat-

ute must interpret the provision in order to fill the gap

and implement the law’s civil provisions. Citing the im-

portance of that role, the Court in Chevron deferred to

an expert agency’s reasonable interpretation of a tech-

nical statutory term that Congress had left undefined.

Chevron U.S.A., Inc. v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837, 866 (1984).

~~ on

21

However, the interpretive authority of administrative

agencies is subject to important constraints that have

their roots in the foundation of our system of govern-

ment. The constitutional separation of powers principle

reflects, in large part, the determination that no single

governmental body should have the power to define a

crime that it also prosecutes. When a court reviews a

criminal statute, it seeks to ensure that this separation is

maintained. Further, due process requires that citizens

be put on notice as to what constitutes criminal conduct.

Thus, if a statute that imposes criminal sanctions is un-

clear, the statute must be interpreted narrowly to mini-

mize the possibility that citizens can be convicted of a

crime without being aware that their conduct risks crim-

inal sanctions.

Accordingly, in reviewing an ambiguous statutory pro-

vision that has been interpreted by an administrative

agency, a court must consider a number of factors to

determine how to resolve the ambiguity. The court must

consider whether the administration of the statute in

question is delegated to a particular agency that may

have developed expertise in the area and whether the

issue to be resolved is one that requires the agency’s

expertise. However, the court must also determine

whether the statute in question has criminal applications

that implicate principles such as separation of powers and

due process. In such circumstances, deferring to an

agency interpretation would upset the balance of power

among the three branches of government and, therefore,

would be inappropriate.

B. The Principle of Separation of Powers Requires

That Congress, Not Administative Agencies, De-

fine Crimes.

When a court is faced with ambiguity in a statute the

violation of which may cost an individual his liberty, the

court’s duty in interpreting the statute is clear: the court

22

must look to Congress, not an administrative agency, to

define the scope of criminal conduct. See United States

v. Kozminski, 487 U.S. 931, 949 (1988) (rejecting the

federal government’s statutory interpretation because it

“would delegate to prosecutors and juries the inherently

legislative task of determining what type of coercive ac-

tivities are so morally reprehensible that they should be

punished as crimes”). This is particularly true where

the agency seeks to interpret the statute in a manner that

expands the scope of criminal liability. See id. at 949-50.

Such is the case here. The ESA provides criminal

sanctions, including imprisonment, for violations of the

Act or its implementing regulations. 16 U.S.C. § 1540

(b)(1). Thus, it is a criminal statute: “we know of no

other basis for determining when the essential nature of

a statute is ‘criminal.’” United States v. Thompson/

Center Arms Co., 112 §. Ct. 2102, 2110 n.10 (1992);

see also Sweet Home Chapter of Communities for a Great

Oregon v. Babbitt, 30 F.3d 190, 194 (D.C. Cir. 1994)

(Silberman, J., dissenting from denial of rehearing en

banc). Moreover, the FWS rule has the effect of expand-

ing the universe of activities to which these criminal sanc-

tions apply—that is, it criminalizes activities that tradi-

tionally have been considered “takings” (e.g., killing or

injuring an individual member of a species) but also

wholly benign activities that have never been considered

“takings” (e.g., removing sediment from a_ drainage

ditch).

This fundamental principle—that the Court must in-

terpret a criminal statute by determining the views of

Congress, not an agency—rests on the separation of

powers that is the foundation of our system of govern-

ment. See Crandon v. United States, 494 U.S. 152, 177

(1990) (Scalia, J., concurring) (“[C]riminal statute[s

are] not administered by any agency but by the courts.”).

“When the legislative and executive powers are united in

the same person. or in the same body of magistrates,

there can be no liberty: because apprehensions may arise,

eee eS ee ae

23 -

lest the same monarch or senate should enact tyrannical

laws and execute them in a tyrannical maner.” Baron

de Montesquieu, The Spirit of the Laws 151-52 (Thomas

Nugent trans., 1966) (1949). The Framers shared this

concern, embedding the concept of separation of powers

in the constitutional mandate that “[al]ll legislative pow-

ers . . . Shall be vested in a Congress of the United

States” and “executive power . . . in a President.” US.

Const. art. I, § 1; id. art. III, § 1; see also United States

v. Robel, 389 U.S. 258, 277-78 (1967) (Brennan, J.,

concurring) (delegation of power to Secretary of Defense

to define criminal liability “not a constitutionally accept-

able substitute for Congress’ judgment”).

The FWS rule runs afoul of the separation of powers

principle because the same agency is defining the crime

and enforcing it. By interpreting Section 9 of the ESA

to encompass the prohibition against habitat modification

by nonfederal parties, the FWS has not merely formulated

civil policy, it has defined the meaning of words in a

manner that can be used to deny citizens their freedom.

The defining characteristic of that interpretation is that it

extends the Section 9 prohibition on “take” to a category

of activities that is not explicitly mentioned in the statute

and that would not be subject to the prohibition absent

the FWS regulation. Adoption of the FWS interpreta-

tion would therefore result in FWS defining the scope

of criminal liability. The Court should not acquiesce to

FWS’s usurpation of the authority that the Constitution

leaves solely to Congress. Instead, the Court must de-

termine, independent of the FWS interpretation, what

Congress intended to define as a crime.

C. In the Face of Ambiguity in a Criminal Statute,

the Court Must Apply the Rule of Lenity and Adopt

a Narrow Interpretation.

If Congress has not clearly stated what activities are

prohibited, the Court must determine some means for

resolving the ambiguity without relying impermissibly on

24

the agency interpretation. The appropriate method for

resolving ambiguity in criminal statutes derives from the

guarantee of due process. Ordinary notions of due

process require that citizens have notice that the conduct

they are contemplating has been criminally prohibited.

Ladner v. United States, 358 U.S. 169, 178 (1958).

The courts give life to this fundamental principle by re-

quiring Congress to be explicit about what it considers

a crime. When Congress is not explicit, courts construe

ambiguous provisions to limit potential criminal liability:

— Sees

[|W ]hen choice has to be made between two readings

of what conduct Congress has made a crime, it is

appropriate, before we choose the harsher alternative,

to require that Congress should have spoken in lan-

guage that is clear and definite. We should not derive

criminal outlawry from some ambiguous implication. ,

Ladner, 358 U.S. at 177-78 (quoting United States v. }

Universal C.1.T. Credit Corp., 344 U.S. 218, 221-22 |

(1952)):; see also Kozminski, 487 U.S. at 952 (statute

interpreted narrowly to prevent “the arbitrariness and un-

fairness of a legal system in which the judges would de-

velop standards for imposing criminal punishment on a

case-by-case basis”); Thompson, 112 S. Ct. at 2113

(Stevens, J., dissenting) (rule of lenity would be appro-

priate in criminal case in which the defendant did not

have adequate notice of the government’s interpretation

of an ambiguous statute).

To ensure that individuals have adequate notice of

what acts may be criminal, this Court has adopted the

rule of lenity when faced with ambiguous statutory pro-

visions. Under the rule of lenity, if the Court is “left

with an ambiguous statute” after “‘seiz[ing] everything

from which aid can be derived,’” the provision at issue

will be read in the manner that limits criminal liability.

United States v. Bass, 404 U.S. 336, 347 (1971) (quot-

ing United States v. Fisher, 6 U.S. (2 Cranch) 358, 386

(1805)).

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25

This Court recently applied the rule of lenity in the

civil context to reject an agency interpretation of a stat-

ute the agency had responsibility for administering. See

United States v. Thompson/Center Arms Co., 112 S. Ct.

2102 (1992). The controversy before the Court was

predicated on a challenge to the Bureau of Alcohol, To-

bacco and Firearms’ (“ATF”) interpretation of the word

“firearms,” defined in the National Firearms Act (“NFA”)

as rifles with barrels less than sixteen inches long, or

“short-barreled rifles.” ATF notified the Thompson/Cen-

ter Arms Company that the product it made, an unassem-

bled kit containing all the parts needed to make either a

short- or a long-barreled rifle, was taxable as a “firearm”

within the meaning of the NFA. The company sued to

recover the tax it paid, arguing that its product was not

taxable because assembly was required to create a short-

barreled rifle and because an alternate choice by the pur-

chaser. attaching a longer barrel, would make the product

a long-barreled rifle, which is not taxable under the NFA.

The Court found that “[nJeither the statute’s language

nor its structure provides any definitive guidance” as to

whether Congress intended the term “firearm” to include

an unassembled rifle. Thompson, 112 S. Ct. at 2107.

Observing that the NFA is a strict liability statute that

can result in criminal violations without a finding of will-

fulness, the Court applied the rule of lenity to reject the

broader definition proffered by the government and con-

cluded that a narrow construction of the term “firearm”

was “proper.” Id. at 2109.

As in Thompson, the FWS regulation interprets a

statute to expand criminal liability in a situation where

no willfulness is required to establish liability. See 16

U.S.C. § 1540(b). Instead, the ESA imposes criminal

liability for “knowing” violations and, thus, does “not

require the government to show that [the defendant]

knew his conduct was illegal.” United States v. Nguyen,

916 F.2d 1016, 1018 (5th Cir. 1990) (criminal con-

26

viction under Section 9 of the ESA for possession of |

a threatened Loggerhead sea turtle). As a result, under . |

the FWS interpretation of “take,” a citizen could be |

convicted of a crime if she knew that she had modified |

her land even if she did not know that the land was

habitat or potential habitat for threatened or endangered

species."*

Indeed, the FWS interpretation makes “knowing” but

unintentional takes common occurrences. Habitats are |

often modified by everyday behavior, such as building a |

home, digging a drainage ditch, mowing a lawn, or trim- |

ming a hedge. Frequently, persons conducting these ac-

_ tivities are individuals, not large businesses with legions of

advisers.

Thus, application of the rule of lenity is necessary here

because the FWS interpretation expands potential criminal

liability by increasing the number of activities that are sub-

ject to the Section 9 prohibitions yet fails to notify citizens

that their conduct may be criminal. See Crandon v.

United States, 494 U.S. 152, 158 (1990); see also Thomp-

son, 112 S. Ct. at 2110; Liparota v. United States, 471

U.S. 419, 427 (1985); United States v. Bass, 404 U.S.

336, 347-48 (1971); United States v. Fisher, 6 U.S. (2

Cranch) 358, 386 (1805). In cases such as this, where

ordinary citizens have no notice that their behavior may be

criminal, applying the rule of lenity is necessary to protect

“the bedrock principle that in a free country citizens who

14In some cases, the Court has prevented normal conduct from

being criminally prosecuted pursuant to a statutory “knowing”

standard by presumptively interpreting the statute to require

scienter for each element of the crime. See, e.g., United States v.

X-Citement Video, Inc., 115 S. Ct. 464, 469 (1994) (interpreting the

Protection of Children Against Exploitation Act, which prohibits

“knowingly” receiving child pornography, as requiring that the de-

fendant know that he is receiving sexually explicit material in

order to prevent ordinary conduct from being criminalized). How-

ever, the same presumption has not been applied to the ESA’s

criminal provisions. See Nguyen, 916 F.2d at 1018.

27

are potentially subject to criminal sanctions should have

clear notice of the behavior that may cause sanctions to

be visited upon them.” United States v. McGoff, 831

F.2d 1071, 1077 (D.C. Cir. 1987).*

In short, the FWS interpretation should be rejected

under the rule of lenity.

D. FWS’s Claims to Deference Must Be Rejected.

Ignoring the criminal application of the “harm” regula-

tion, the government’s brief assumes that FWS’s interpreta-

tion of Section 9 is entitled to deference under Chevron.

The gist of the government’s argument is that, under

Chevron, if the Court finds the statutory provision at issue

ambiguous, then the FWS interpretation of the provision

should be upheld as long as that interpretation is based on

a “permissible construction” of Section 9. This argument

is unavailing because Chevron does not apply under the

circumstances of this case.

Chevron involved a challenge by several environ-

mental groups to the Environmental Protection Agency’s

(“EPA”) interpretation of the phrase “stationary source”

in the Clean Air Act (“CAA”). Plaintiffs argued that

“stationary source” was intended to refer to single emis-

sions points and, therefore, an EPA regulation that

allowed permit conditions to be based on the “bubbling”

of several emissions points at a facility was impermissible

under the CAA.

15 It makes no difference that the statute is not being challenged

before this Court in the criminal context. The Court in Thompson

applied the rule of lenity to the civil application of a statutory

provision that potentially expanded criminal liability, illustrating

that the mere potential that an ambiguous statutory provision will

be applied to impose criminal liability requires that the provision

be interpreted narrowly. Here, the Court is similarly faced with

a statute that can be used to impose criminal penalties without a

finding of willfulness. See 16 U.S.C. § 1540(b). Accordingly, it is

appropriate to apply the rule of lenity even though the ESA also

has civil applications.

28

In reviewing the challenge, the Court determined that

Congress had never considered the narrow issue before the

Court, but instead had left the term “stationary source”

undefined and ambiguous rather than making a decision

as to the proper balance to be struck between competing

economic and environmental interests. Chevron, 467 U.S.

at 862. Reasoning that when Congress leaves a technical

statutory provision undefined, it must in effect be delegat-

ing the policy judgment to the agency charged with ad-

ministering the statute, the Court deferred to EPA’s in-

terpretation of the statutory provision. The Court noted

that EPA, unlike the Court, is part of the “political

branch of Government,” and it is therefore appropriate

for the agency to resolve “the competing interests which

Congress itself either inadvertently did not resolve, or

intentionally left to be resolved by the agency charged

with the administration of the statute in light of everyday

realities.” Jd. at 865-66. Thus, the Court determined

that, as the expert in the field, EPA should be permitted

to fill. in the “gap left open by Congress.” Id. at 866.

Chevron teaches that an agency’s interpretation of a

statute it administers may be entitled to deference, par-

ticularly when the issue before the Court has not been

considered by Congress and is uniquely within the exper-

tise of the Agency.”* See Chevron, 467 U.S. at 859;

16 Unlike the complex, technical provision at issue in Chevron,

the provision at issue in this case consists of words that have

commonly understood meanings and, thus, require no technical

expertise. The Court in Chevron found that the definition of

“stationary source” was predicated on a complicated array of

factors, only some of which were defined in the statute. Chevron,

467 U.S. at 864 n.38. Accordingly, the Court found that the term

“stationary source’ was technical and should be deciphered by

EPA rather than the Court, because EPA was expert in the CAA.

Conversely, when Congress enacts a law containing words that

have common meanings, it is inappropriate to conclude that Con-

gress intended to delegate the responsibility for interpreting such

words to the implementing agency. Aurora Packing Co. v. NLRB,

904 F.2d 73, 75 (D.C. Cir. 1990) (court declined to defer to NLRB’s

29

Aluminum Co. v. Central Lincoln Peoples’ Util. Dist.,

467 U.S. 380, 389-90 (1984). However, administrative

agencies have no authority to interpret criminal liability.”

See Kozminski, 487 U.S. at 949. It is Congress, not ad-

ministrative agencies, that must define the extent of crim-

inal liability, and it is the role of the courts to ensure

that this is the case. Crandon, 494 U.S. at 177 (Scalia,

J., concurring). Thus, in resolving any ambiguities in

the ESA, resort to administrative interpretations by FWS

are inappropriate, especially where the interpretation dra-

matically expands the range of prohibited conduct.

interpretation of the word “employee” because the word had an

established common law meaning, and the NLRB had no expertise

in common law). This Court has recognized that words of common

usage and meaning are to be analyzed differently from technical

words: “In the search for statutory meaning, we give non-

technical words and phrases their ordinary meaning.” Smith v.

United States, 113 S. Ct. 2050, 2061 (1993) (Scalia, J., dissent-

ing) ; see also Chapman v. United States, 500 U.S. 453, 462 (1991);

Perrin v. United States, 444 U.S. 37, 42 (1979). As noted above,

the words “take” and “harm” have understood meanings when

used in connection with endangered species. Interpreting these

terms does not require technical knowledge about endangered

species, but only the ability to interpret simple words in the

English language. Accordingly, the statutory provision at issue

here should “be read with the Saving grace of common sense

with which other enactments, not cast in technical language, are

to be read.” Bell v. United States, 349 U.S. 81, 83 (1955).

17 Although the CAA has criminal] provisions, the Chevron

Court did not address the rule of lenity. A review of the briefs

in Chevron indicates that the issue was simply not before the Court.

In any event, the outcome in Chevron would have been the same.

Unlike the FWS interpretation in this case, the EPA definition of

“stationary source” did not expand potential criminal liability.

Under EPA’s bubble concept, several emissions points can be regu-

lated as a single stationary source, thereby reducing the number

of emissions violations that can lead to criminal liability under the

CAA. Accordingly, the separation of powers and due process

concerns present in this case were not of concern in Chevron.

30

In this case, acceding to FWS demands for deference

under Chevron would have the effect of allowing an

administrative agency free rein in determining what ac-

tions may result in criminal sanctions. Deference is

inappropriate in such circumstances. Accordingly, if the

Court finds that Congress did not have an intent with

respect to the meaning of the term “take,” the Court

should apply the rule of lenity, resolving any ambiguity

to limit potential criminal liability. Courts should not

hand agencies the keys to the jailhouse door.

CONCLUSION

For the forgoing reasons, the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

VIRGINIA S. ALBRECHT *

THOMAS C. JACKSON

MICHELLE A. WENZEL

JOSHUA S. WYNER

BEVERIDGE & DIAMOND, P.C.

1350 I Street, N.W.

Washington, D.C. 20005

(202) 789-6000

Counsel for Amici Curiae

* Counsel of Record