" H. Rep. No. 835, 97th Cong., 2d Sess. 30 (1982).
Finally, the structure of the ESA supports the Court's conclusion that Congress intended "take" to be interpreted broadly, even to include habitat modification. Plaintiffs suggest that the § 17.3 definition of "harm" to include habitat modification makes the land acquisition provision of the ESA largely superfluous. However, as defendants point out, there is considerable overlap in the ESA between different provisions of different sections of the ESA, and this overlap is completely consistent with the statute's purpose of attacking the issue of conservation as aggressively as possible. The land acquisition provision of Section 5 offers a solution to the problem of habitat modification through federal spending; the take prohibitions of Sections 7 and 9 offer solutions through civil and criminal sanctions.
The Court thus concludes that the language, structure and history of the ESA reveal that Congress intended an expansive interpretation of the word "take," an interpretation that encompasses habitat modification. However, even if the Court were somehow to find the ESA "silent or ambiguous" with respect to this issue, it would nevertheless uphold the Secretary's regulation as a reasonable interpretation of the statute. Chevron, 467 U.S. at 843.
Plaintiffs have not addressed the question of the reasonableness of the Secretary's regulation under the second part of the Chevron test. In light of the statute's broad definition of "take," and the absence of any explicit language in the legislative history precluding habitat modification from the scope of that definition, the Court cannot conclude that § 17.3 is an impermissible construction of the statute. Were the Court to reach the second step in Chevron, therefore, it must defer to the Secretary's interpretation.
2. § 17.3 Is Not Void for Vagueness
Plaintiffs also claim that the Secretary's definition of "harm" violates the Fifth Amendment's due process guarantee against vague regulations. This constitutional challenge is purely facial; plaintiffs do not allege that they are being threatened with actual criminal enforcement of the regulation.
In general, the void for vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903 , 103 S. Ct. 1855 (1983). The primary purpose of the doctrine is to provide citizens with actual notice of offensive conduct, to prevent arbitrary enforcement of criminal laws, and to ensure that such laws establish minimal guidelines to govern law enforcement. Id. at 358.
Defendants argue that, in order to succeed in their vagueness challenge, plaintiffs must demonstrate that the regulation is impermissibly vague in all of its applications. They point out that this is a facial challenge which does not implicate any "constitutionally protected conduct" such as expressive rights under the First Amendment. Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 , 71 L. Ed. 2d 362 , 102 S. Ct. 1186 (1982). Plaintiffs insist that § 17.3 implicates private property rights protected by the Fifth Amendment, and that therefore the broad standard of proof for vagueness outlined in Flipside should not apply to their "constitutionally protected conduct."
The Court agrees with plaintiffs that § 17.3 implicates private property rights protected under the Fifth Amendment. It cannot, however, conclude that such Fifth Amendment interests constitute "constitutionally protected conduct" within the meaning of Flipside. Rather, the Court must apply the familiar standard outlined in United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706 , 95 S. Ct. 710 (1975): "Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand."
The facts of this case establish that the challenged regulation is not void for vagueness. The definition of "harm" found at § 17.3 clearly limits prohibited conduct to that which "actually kills or injures wildlife." 50 C.F.R. § 17.3. Furthermore, the regulation prohibits only "significant habitat modification or degradation," expressly defined as modification or degradation which "actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." Id. (emphasis added) As defendants point out, the determination of whether there has been a violation of this regulation requires an evaluation of the species involved, the biological needs of that species, and the degree of habitat modification, all of which are readily ascertainable. Moreover, the regulation itself requires a finding that actual death or injury to a species has occurred. The terms of the regulation thus clearly provide more than "minimal guidelines" and are sufficiently clear to put a party on notice of prohibited conduct.
Finally, in order to establish a violation of the ESA under this regulation or any other, the government must prove that the charged party knowingly committed the violation. See 16 U.S.C. § 1540(a) & (b). This intent requirement goes a long way towards vitiating vagueness concerns, since it eliminates the possibility that a person will be prosecuted for conduct which he or she did not know was unlawful. Nor have plaintiffs offered any evidence, other than hypothetical possibilities, that the FWS is enforcing this regulation in an arbitrary and discriminatory manner. The Court therefore concludes that § 17.3 is not impermissibly vague.
B. The Extension of the Taking Prohibitions at 50 C.F.R. § 17.31(a)
The Secretary's regulation at 50 C.F.R. § 17.31(a) extends to threatened species all the protections that the ESA affords to endangered species. This regulation was promulgated under the authority set out in Section 4(d) of the ESA, which states in pertinent part:
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, 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). Plaintiffs argue that § 4(d) imposes limitations on the Secretary's ability to extend the taking prohibitions for endangered species to threatened species. First, they claim that § 4(d) allows such extensions only on a species-by-species basis. Second, they argue that § 4(d) requires any such regulation to be accompanied by an explicit finding that the extension is "necessary and advisable" for the conservation of the threatened species.
The Court cannot accept plaintiffs' arguments. The plain language of the ESA clearly grants the Secretary the authority to promulgate a regulation such as § 17.31(a). Where a statute is clear and unequivocal on its face, a court's decision may rest on the words of the statute itself, at least where it is not manifestly inconsistent with legislative intent. Gatewood v. Washington Healthcare Corp., 290 U.S. App. D.C. 31, 933 F.2d 1037, 1040 (D.C. Cir. 1991); Aviation Consumer Action Project v. Washburn, 175 U.S. App. D.C. 273, 535 F.2d 101, 106 (D.C. Cir. 1976). In this case, the language of the statute allows the Secretary to "prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title." 16 U.S.C. § 1533(d) (emphasis added). The word "any" encompasses the entire range of threatened species and prohibited acts which the Secretary might consider. It allows the Secretary to prohibit one act with respect to one threatened species or as many as all acts with respect to all threatened species.
Nothing in the language or legislative history of the statute requires the Secretary to promulgate regulations under § 4(d) on a species-by-species basis. On the contrary, the statute gives the Secretary broad discretion to issue regulations "as he deemed necessary and advisable." Plaintiffs' reading of this phrase as a requirement that the Secretary must issue some kind of "necessary and advisable" findings in conjunction with any promulgated regulation completely distorts the statutory language. The Secretary is not required to issue findings under § 4(d); he is required to issue regulations. To interpret the phrase as plaintiffs suggest would be to rewrite the statute.
The legislative history of the ESA offers no evidence that the Court's plain reading of the language of § 4(d) is "manifestly inconsistent with legislative intent." Gatewood, 933 F.2d at 1040. While the legislative record does contain statements which suggest that the Secretary would, under § 4(d), draft regulations on an individual basis for each threatened species, there is nothing in the record to suggest that he is required to do so. In fact, the Senate Report evidences Congress' awareness of, and acquiescence in, a more sweeping use of § 4(d). See S. Rep. No. 307, 93d Cong., 1st Sess. 8 (1973) (allowing the Secretary to make "any or all" of the acts prohibited for endangered species also prohibited as to threatened species).
The Court thus concludes that § 17.31(a) is not contrary to the ESA.
The Court concludes that both of the regulations challenged in this action, 50 C.F.R. § 17.3 and 50 C.F.R. § 17.31(a), are consistent with the ESA. Furthermore, § 17.3 is not void for vagueness. The Court thus will grant defendants' motion for summary judgment and deny plaintiffs' motion for summary judgment. An Order consistent with this Memorandum Opinion will be entered on this date.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE
Dated: May 29, 1992