Sweet Home Chapter of Communities for a Great Oregon v. Babbitt

The primary purpose of the federal Endangered Species Act (ESA) was to prevent the extinction of endangered species by, in relevant part, (1) empowering the federal government to protect critical habitats through land acquisition and (2) banning the private taking of wild animals to discourage predation. The ESA defined the term “take,” as used in the private takings ban, to mean to “harass, harm, pursue, hunt, shoot, wound, capture, or collect” a wild animal or to attempt to do so. The Fish and Wildlife Service (FWS) (defendant), the federal agency charged with administering the ESA, promulgated a regulating stating that the term “harm” prohibited both direct harm to wild animals and indirect harm through habitat destruction or degradation. In 1982, the ESA was amended to add a permit system under which private developers who took all reasonable precautions could not be persecuted for incidental takings. The 1982 amendment neither accepted nor rejected the FWS’s definition of “harm”. The Sweet Home Chapter of Communities for a Greater Oregon (Sweet Home) (plaintiff) challenged the FWS’s “harm” definition, arguing that it was unreasonably expansive because (1) the other terms used in the takings ban could only be read to prohibit conduct that directly harmed wildlife; (2) the legislative history of the ESA indicated that Congress intended to burden the federal government, not private landowners, with habitat conservation; and (3) Congress had declined to adopt the FWS’s definition of “harm” in the 1982 amendment. The FWS countered, arguing, in relevant part, that because the FWS’s definition of harm predated the 1982 amendment, Congress’s failure to reject the FWS’s definition constituted implied ratification. The district court granted FWS summary judgment. On appeal, the appellate court originally affirmed but then granted Sweet Home’s motion for a rehearing.