Beyond "Harm": Abandoning the Actual Injury Standard for Certain Prohibited Takings under the Endangered Species Act by Giving Independent Meaning to "Harassment"

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I. INTRODUCTION

As new technology and a desire for progress propel us into the next millennium, a corresponding daily depletion of national and worldwide wildlife resources perpetuates the frightening biological problem of species extinction, resulting in "irreplaceable losses" to medicine, science, ecology, and aesthetics.1 Every species is a part of the intricate and complicated ecosystem; its stability depends on the continued existence of each of its components.2 Each black-footed ferret, blue whale, and red wolf contributes to the delicate "balance of nature," a state of ecology that must be maintained for humans to survive.3 Indeed, scientists have derived much-needed knowledge from other species: how to increase worldwide food production, cures for disease, and a deeper understanding of how the human body functions.4 Geneticists and biologists have just begun to uncover the vast resources stored in wildlife that can enrich human life.5 With each species extinction comes a lost opportunity---one that cannot be replaced or artificially reproduced.6 Thus, undertaking the protection and revival of endangered species is more than an exercise for animal lovers and aesthetes-it is an effort demanded by the human instinct of self-preservation. 7

The Endangered Species Act of 1973 ("ESA" or "Act"),8 the cc most comprehensive legislation for the preservation of endangered species ever enacted by any nation,"9 contains a variety of protections designed to save from extinction those species that the Secretary of the Interior ("Secretary") designates as threatened or endangered.10 The Act seeks to preserve at-risk species through three basic mechanisms: (1) a federal land acquisition program;11 (2) the imposition of strict obligations on federal agencies to avoid adverse effects on endangered species;12 and (3) a prohibition on the taking of endangered species by anybody.13 The Act provides that "[t]he term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."14 Since the ESA's enactment twenty-five years ago, "difficult questions of proximity and degree" 15 have arisen regarding the definition of "take," particularly in determining the scope of the term "harm ."16 While "harass" is similarly "vague and expansive,"17 it has not enjoyed such heated debate.

The first purpose of this Note is to orient the term "harm" within the general dialogue about the scope of ESA-prohibited takings. Accordingly, after a brief overview of endangered species legislation in Part II, Part III explores current views on the scope of "harm" as revealed by judicial application of the term and its regulatory definition. A series of Ninth Circuit cases held that showing an action poses a significant risk of harm to a protected species is sufficient to sustain an ESA cause of action,18 while the First Circuit held that only showing past or present injury to a protected species will suffice.19 Both agencies developed these standards largely in the context of "harm" analysis, while only cursorily addressing "harassment." Additionally, the Supreme Court subsequently emphasized the necessity of showing "actual harm or injury" where the prohibited taking occurs through "harm," but was absolutely silent regarding the applicability of the "significant risk of harm" standard to "harassment."20 Part IV offers a critique of these two models and an analysis of Sweet Home's effect on ESA-takings jurisprudence.

This Note then highlights "harassment" in the context of ESAprohibited takings and demonstrates the term's independent meaning within the definition of "take." Part V overviews the U.S. Fish & Wildlife Service's regulations defining "harm" and "harass." The Secretary's final redefinition of "harm" stressed that no liability for "harm" would be found absent "actual harm or injury,"21 but defined "harass" as encompassing acts and omissions that create a "likelihood of injury to wildlife. …