## Facts

- The Secretary of the Interior, through the Fish and Wildlife Service, adopted a regulation defining “harm” within the ESA term “take” to include significant habitat modification or degradation that actually kills or injures wildlife by impairing breeding, feeding, or sheltering.
- Sweet Home Chapter of Communities for a Great Oregon and related individuals and entities tied to the forest products industry challenged the regulation on its face.
- Plaintiffs alleged the regulation threatened or restricted timber harvesting and related land uses in areas occupied by listed species, causing economic injury.
- Plaintiffs contended that the statutory definition of “take” covers only direct acts against animals and does not reach habitat-altering conduct that indirectly results in injury or death.

## Issues

1. Whether the ESA’s prohibition on “taking” endangered wildlife allows the Secretary to define “harm” to include habitat modification or degradation that indirectly causes actual injury or death.
2. Whether, under statutory interpretation principles, the term “take” is limited to direct, forceful acts applied to individual animals, making the habitat-modification portion of the regulation invalid.

## Decision

- The D.C. Circuit reversed the district court’s judgment upholding the regulation.
- The court held the regulation’s inclusion of habitat modification within “harm” was inconsistent with the ESA’s definition of “take” and therefore invalid to that extent.
- Applying *noscitur a sociis*, the court read “harm” in the statutory list (“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect”) as limited to conduct involving a direct application of force against an animal.
- The court reasoned that the ESA’s structure treats habitat protection as addressed through other provisions (including federal-action provisions referencing habitat), not through § 9’s “take” prohibition.
- The court treated the statute as sufficiently clear to foreclose deference to the agency’s broader interpretation.

## Legal Principles

- Under *noscitur a sociis*, a statutory term may be construed narrowly based on the common character of surrounding terms in the same list.
- The ESA statutory term “take,” as interpreted by this decision, covers direct acts against wildlife and does not extend to habitat modification merely because it indirectly results in injury or death.
- Agency regulations are invalid when they exceed the scope of authority granted by an unambiguous statute.
- Statutory structure may be used to infer that Congress assigned different tools to different problems (direct takes versus broader habitat regulation).

## Conclusion

The D.C. Circuit held that the ESA’s “take” prohibition does not authorize a regulatory definition of “harm” reaching habitat modification that indirectly kills or injures protected wildlife, limiting “take” to direct acts against animals and invalidating the regulation to the extent it expanded beyond that limit.


Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993)