## Facts

- Plaintiffs were small landowners, logging companies, and industry-dependent families and organizations whose forestry and land-use activities occurred in areas inhabited by listed species, including the northern spotted owl and the red-cockaded woodpecker.
- The Endangered Species Act (ESA) makes it unlawful to “take” endangered wildlife, defining “take” to include “harass” and “harm,” among other verbs.
- The Department of the Interior, through the U.S. Fish and Wildlife Service (FWS), defined “harm” by regulation to include significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing essential behaviors (e.g., breeding, feeding, sheltering).
- Plaintiffs brought a facial challenge to the regulation, alleging it exceeded statutory authority by treating ordinary habitat-altering activities (such as logging) as unlawful “takes” and exposing them to civil and criminal liability, with substantial economic impacts.
- The district court granted summary judgment to the Secretary, upholding the regulation; plaintiffs appealed.

## Issues

1. Whether the ESA’s statutory term “take” authorizes a regulatory definition of “harm” that includes significant habitat modification or degradation when it actually kills or injures listed wildlife.
2. Whether, under statutory text and structure, “harm” must be limited to direct applications of force against individual animals rather than indirect injury caused by land-use activities.
3. Whether the regulation was entitled to deference under administrative law principles where the court concluded the statute’s meaning was clear.

## Decision

- The D.C. Circuit reversed the district court’s judgment for the Secretary and held the challenged portion of the “harm” regulation invalid.
- 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 direct, affirmative acts against animals, not habitat modification.
- The court concluded that treating habitat alteration as a “take” improperly extended § 9 into a broad land-use control mechanism, despite other ESA provisions addressing habitat protection through different tools.
- The court emphasized the scope of potential criminal liability under § 9 as a reason to avoid an expansive construction that would reach wide categories of ordinary economic conduct.
- The court declined to defer to the agency’s interpretation because it found the statute unambiguous in excluding indirect habitat modification from the meaning of “take.”

## Legal Principles

- Under noscitur a sociis, a statutory term may be construed narrowly when surrounded by words denoting direct, affirmative conduct; here, “harm” was confined to direct injury-producing acts against animals.
- Agency regulations that expand statutory prohibitions beyond the court’s reading of unambiguous statutory text are invalid and not entitled to deference.
- Statutory structure can inform the limits of a prohibition where related provisions address the broader policy concern through separate mechanisms.
- Where a statute imposes criminal liability, courts may be reluctant to interpret ambiguous terms to cover broad categories of ordinary conduct absent clear congressional authorization.

## Conclusion

The D.C. Circuit held that the ESA’s prohibition on “taking” wildlife could not be extended by regulation to cover habitat modification that indirectly kills or injures listed species, interpreting “harm” as limited to direct actions against animals and rejecting deference to the agency’s broader rule.


Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994)