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SWEET v. LUJAN

May 29, 1992

SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Plaintiffs,
v.
MANUEL LUJAN, JR., Secretary of the Interior, JOHN F. TURNER, Director, U.S. Fish and Wildlife Service, Defendants.


JOHNSON


The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON

Plaintiffs are various organizations, businesses and individuals, who depend directly or indirectly on the timber industry in the Pacific Northwest and in the Southeast for their livelihood. They challenge two regulations promulgated by the Secretary of the Interior ("the Secretary") as contrary to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (1988). They also claim that one of these regulations is void for vagueness. Currently pending before the Court are the parties' cross-motions for summary judgment. The parties agree that there are no genuine disputes of material fact and that this case raises purely legal issues. After careful consideration of the submissions of the parties and the entire record herein, and for the reasons outlined below, the Court will grant defendants' motion for summary judgment and deny plaintiffs' motion for summary judgment.

 REGULATORY AND FACTUAL BACKGROUND

 The Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1988), was enacted by Congress in 1973 to provide a program for the conservation of endangered species and threatened species and for the preservation of their ecosystems. 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Secretary to designate species of fish, wildlife, or plants as "endangered" or "threatened" in accordance with certain procedures. 16 U.S.C. § 1533(a)(1). The Secretary is also empowered to designate "critical habitat" for such listed species and to develop recovery plans for their survival. 16 U.S.C. §§ 1533(a)(3), 1533(f).

 The ESA prohibits certain activities with respect to species that are designated as endangered or threatened. Section 7(a)(2) of the ESA, which applies only to federally-authorized actions, requires all federal agencies to insure that their activities will not "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical. . . ." 16 U.S.C. § 1536(a)(2).

 Section 9 of the ESA, which applies to both federal and nonfederal actors, addresses prohibited actions with respect to endangered species only. At issue in this case is the scope of the "take" provision, § 1538(a)(1)(B), which makes it unlawful for any person to "take any [endangered] species within the United States." The ESA defines "take" as follows:

 16 U.S.C. § 1532(19). Although the ESA does not define the terms within this definition any further, the Secretary has promulgated a regulation defining the word "harm" as follows:

 
Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

 50 C.F.R. § 17.3 (1991).

 The prohibition against "takings" set out in § 1538(a)(1) applies only to those species listed as endangered. However, section 4(d) of the ESA allows the Secretary to extend some or all of the protections in § 1538(a)(1) to threatened species as well:

 
Whenever any species is listed as a threatened species . . ., the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife. . . .

 16 U.S.C. § 1533(d). Pursuant to this section, the Secretary has adopted a regulation which extends the prohibitions listed in § 1538(a)(1), including the prohibition against "takings," to all wildlife species listed as threatened:

 
Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which restates the prohibitions outlined in 16 U.S.C. § 1538(a)(1)] shall ...

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