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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 687

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0804%3A26. Public record. Not legal advice.