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Endangered Species Act

Taking

Once a fish or wildlife species is listed as endangered or threatened under the ESA, the act prohibits anyone from taking the species; plants are protected under separate provisions of the act. To "take" a species means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (§ 1532 (19)).

The federal courts have disagreed about the term harm in the ESA definition of taking which includes the detrimental modification of a species' habitat. For example, the U.S. COURTS OF APPEALS for the Fifth and Ninth Circuits had interpreted the taking prohibition to include habitat modification (Palila v. Hawaii Department of Land & Natural Resources, 639 F.2d 495 [9th Cir. 1981]; Sierra Club v. Yeutter, 926 F.2d 429 [5th Cir. 1991]). But the U.S. Court of Appeals for the District of Columbia Circuit, in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (1994), invalidated regulations that included habitat modification within the definition of taking. On appeal of the Sweet Home decision, the U.S. Supreme Court resolved this split, holding that habitat destruction that "actually kills or injures" an endangered or threatened species constitutes a violation of the ESA (Sweet Home, 515 U.S. 687, 115 S. Ct. 2407, 132 L. Ed. 2d 597). In 1999, the ESA published its final rule defining the term harm in the FEDERAL REGISTER (64 FR 607277).

Violations of the ESA can result in criminal penalties of up to one year in prison and $50,000 in fines. Civil penalties of up to $25,000 for each violation may also be imposed. Private citizens may bring actions against other individuals or government entities for violations of the ESA.

The ESA allows certain exceptions to prohibited activities. For example, the secretary of the interior may issue a permit for a taking of a listed species that is "incidental" to an otherwise lawful activity. The applicant must prepare a conservation plan specifying the probable impact of the taking and the steps the applicant will take to minimize the impact. In the early 1990s, the DEPARTMENT OF THE INTERIOR relied on this exception when it began negotiating voluntary habitat conservation agreements with timber companies in the Pacific Northwest. Under these agreements, the landowners can set aside habitat for endangered or threatened species and, in return, avoid prosecution for the incidental taking of a species by ACCIDENTAL KILLING or other harm. By 1995, the agency had begun negotiating more than forty such plans, covering 5.4 million acres, in Washington and Oregon. For example, Murray Pacific Corporation, a timber company in Tacoma, Washington, negotiated an agreement to set aside 10 percent of its 54,000-acre tree farm and provide buffers to protect spotted owls, salmon, and other species. Plum Creek Timber Company, the second largest private landowner in the Northwest, developed a far-reaching plan to set aside up to 170,000 acres of habitat that was expected to help protect an estimated 284 species of wildlife, including grizzly bears, gray wolves, moles, fishers, and several different kinds of frogs, fish, and birds.

During the 1990s there was an attempt to reintroduce gray wolves into Yellowstone National Park and central Idaho with the goal of removing the wolves from the endangered species list by 2002.
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