Deregulation by redefinition is the title of today's lesson from the good book, June 2 Federal Register (page 29490).
The agency is the Fish and Wildlife Service of the Interior Department. The subject is language in the Endangered Species Act that makes it illegal, and this a criminal violation, for an individual to "'take' an endangered species of fish or wildlife."
What does "take" mean? The law says it is "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." All those words seemed clear except for one -- "harm."
What does it mean to "harm" an endangered species, particularly if a criminal prosecution can hang in the balance?
In the regulations promulgated by the Fish and Wildlife people in 1975, "harm" was defined to mean not only "an act or omission which actually injures or kills wildlife," but also "acts which annoy . . . to such an extent as to significantly disrupt essential behavoral patterns, which included, but are not limited to, breeding, feeding or sheltering; significant environmental modifications or degradation which has such effects is included within the meaning of 'harm.'"
Not surprisingly, that broad langauge awakened quite a bit of concern among private landowners who wanted to develop their properties and found they contained habitats for endangered species. That concern grew to fear, four months ago, with a ruling by a federal court in Hawaii that embraced the broad definition of "harm" as an act that modified a species' natural habitat, without directly causing injury to the wildlife.
In this case, the court ruled that Hawaii could not allow goats and sheep to roam on the critical habitat of the Palila, an endangered bird species, because the animals would destroy the vegetation that provided food, shelter and nesting sites for the birds.
The court, in its decision, said that Congress "was informed that the greatest threat to endangered species is the destruction of their natural habitat."
Within two months, the associate solicitor of Fish and Wildlife had produced a memo that said the decision "demonstrates fundamental confusion" over the definition of harm and created an "overly board definition . . . ." His solution: a recommendation that the service redefine "harm" in its regulation to mean only "an act or omission which actually injures or kills wildlife."
That's the proposal now being put out for comment, and it is almost certain that the Fund for Animals, Sierra Club and other conservation groups will do battle to protect the broader definition on the books.