A proposal to rescind the definition of “harm” in the Endangered Species Act has people talking — to the tune of more than 300,000 public comments.

The proposal, put forth April 17 by the U.S. Fish and Wildlife Service, had a public comment period that closed May 19. By May 14, there were more than 121,000 comments. When the comment period closed, that number had ballooned to 375,545.

The original law prohibits anyone from “taking” a protected species. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

At issue is how “harm” is defined. Since the 1970s, harm has been defined through regulations as “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

The proposal says: “The existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take.’ We are undertaking this change to adhere to the single, best meaning of the ESA.”

“The general concern is that rescinding the definition of harm is going to make enforcing the ESA much harder,” said Brigit Rollins, staff attorney for the National Agricultural Law Center.

“Obviously the rest of the ‘take’ definition is there and it pretty clearly will continue to make hunting, pursuing, killing, and injuring listed species illegal, but without harm being defined to include destruction of habitat, the concern certainly from environmental groups is that it will essentially defang the ESA,” she said.

“That’s part of why the proposal to fully rescind the harm definition has been so stunning to a lot of people,” Rollins said. “It would be a massive change in ESA implementation.”

LITIGATION AHEAD

Rollins expects lawsuits right out of the box.

“The second this becomes finalized — and maybe even before — we’re going to see litigation,” she said “There’s probably going to be an immediate injunction and then we’ll be off to the races.”

The action will “possibly be in the Washington, D.C., Circuit, but solid money is on the Ninth Circuit.”

The Ninth Circuit is comprised of Arizona, California, Idaho, Montana, New Mexico, Nevada and Oregon.

‘CHEVRON DOCTRINE’ TEST CASE

Rollins said the proposal may be a significant test of agency reach following last year’s Supreme Court decision on the Chevron doctrine. The June 28 ruling overturned a 40-year-old doctrine which said that courts should generally defer to federal agencies for the rules they make, with the assumption that the agencies are subject matter experts and that the rules are reasonable.

In that case, the high court was explicit that its decision would not undo rulings made while Chevron was the guiding principle.

In its proposal, the U.S. Fish and Wildlife Service pointed to a 1995 case — Babbitt v. Sweet Home Chapter of Communities for a Great Oregon‚ in which the Supreme Court upheld FWS regulation under Chevron. FWS however, notes part of Justice Antonin Scalia’s dissenting opinion in that case in which he says most of the definition of “harm” indicates a direct action against a particular animal, and not an act or omission “that indirectly and accidentally cause[s] injury to a population of animals.’’

FWS says “the ESA itself defines ‘take,’ and further elaborating on one subcomponent of that definition— ‘harm’ — is unnecessary in light of the comprehensive statutory definition.”

Rollins said, “I think this is also kind of a way of testing the judiciary to see if it is willing to revisit some of these issues.”

CULTURAL CACHET

The Endangered Species Act was passed with overwhelming support by Congress in 1973 and signed into law by President Richard Nixon. It is meant to protect fish, wildlife, and plants that are listed as threatened or endangered; provide a means for adding species to and removing them from the list of threatened and endangered species, and to prepare and implement plans for their recovery.

“I think the Endangered Species Act has a different kind of cultural cachet than other laws,” Rollins said. For “a lot of people who don’t necessarily pay a lot of attention to laws, when they hear they’re going to do something to the Endangered Species Act, that really tugs at the emotional heartstrings.”

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