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We often hear about the Endangered Species Act and the impact it has on government and private activities. This page provides an overview of statutes, regulations and a court case which clarify that the Endangered Species Act prohibits the destruction of a habitat areas for an endangered species.

16 U.S.C. §1531. - Congressional findings and declaration of purposes and policy

(b) Purposes -- The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.

Note the reference to ecosystems which implies habitat.

16 U.S.C. §1538. - Prohibited acts

(a) Generally

(1) . with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title [16 U.S.C. §1533] it is unlawful for any person subject to the jurisdiction of the United States to -

(B) take any such species within the United States or the territorial sea of the United States;

Note the scope of the prohibition -- "any person subject to the jurisdiction of the United States."

Note the prohibition is against actions that "take."

16 U.S.C. §1532. - Definitions

For the purpose of this chapter -

(19) The term ''take'' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

Note -- do not confuse the definition of "take" under the ESA (action that interferes with an endangered species) with the definition of "taking" (e.g., government action that takes private property).

50 CFR §17.3 - Definitions

Harm in the definition of ``take'' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

16 U.S.C. §1533. - Determination of endangered species and threatened species

(a) Generally

(3) The Secretary, by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable -

(A) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and...

(b) Basis for determinations

(2) The Secretary shall designate critical habitat, .

16 U.S.C. §1532. - Definitions

For the purpose of this chapter -

(5) (A) The term ''critical habitat'' for a threatened or endangered species means -

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title [16 U.S.C. §1533], on which are found those physical or biological features

(I) essential to the conservation of the species and

(II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title [16 U.S.C. §1533], upon a determination by the Secretary that such areas are essential for the conservation of the species.

50 C.F.R. § 17.94 Critical habitats.

(a) ... All Federal agencies must insure that any action authorized, funded, or carried out by them is not likely to result in the destruction or adverse modification of the constituent elements essential to the conservation of the listed species within these defined Critical Habitats. (See part 402 for rules concerning this prohibition; see also part 424 for rules concerning the determination of Critical Habitat).


The following case explains how the Endangered Species Act prohibits the destruction of habitat of an endangered species.

Babbitt v. Sweet Home Chapt. Comms. for Ore .

(94-859), 515 U.S. 687 (1995).


Decided June 29, 1995

As relevant here, the Endangered Species Act of 1973 (ESA or Act) makes it unlawful for any person to "take" endangered or threatened species, §9(a)(1)(B), and defines "take" to mean to "harass, harm, pursue," "wound," or "kill," §3(19). In 50 CFR §17.3 . Secretary of the Interior further defines "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife." Respondents, persons and entities dependent on the forest products industries and others, challenged this regulation on its face, claiming that Congress did not intend the word "take" to include habitat modification. The District Court granted petitioners summary judgment [for the Secretary], but the Court of Appeals ultimately reversed. Invoking the noscitur a sociis canon of statutory construction, which holds that a word is known by the company it keeps, the court concluded that "harm," like the other words in the definition of "take," should be read as applying only to the perpetrator's direct application of force against the animal taken.

Held: The Secretary reasonably construed Congress' intent when he defined "harm" to include habitat modification. Pp. 7-21.

(a) The Act provides three reasons for preferring the Secretary's interpretation. First, the ordinary meaning of "harm" naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Unless "harm" encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate that of other words that §3 uses to define "take." Second, the ESA's broad purpose of providing comprehensive protection for endangered and threatened species supports the reasonableness of the Secretary's definition. Respondents advance strong arguments that activities causing minimal or unforseeable harm will not violate the Act as construed in the regulation, but their facial challenge would require that the Secretary's understanding of harm be invalidated in every circumstance. Third, the fact that Congress in 1982 authorized the Secretary to issue permits for takings that §9(a)(1)(B) would otherwise prohibit, "if such taking is incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity," §10(a)(1)(B), strongly suggests that Congress understood §9 to prohibit indirect as well as deliberate takings. No one could seriously request an "incidental" take permit to avert §9 liability for direct, deliberate action against a member of an endangered or threatened species. Pp. 7-13.

(b) The Court of Appeals made three errors in finding that "harm" must refer to a direct application of force because the words around it do. First, the court's premise was flawed. Several of the words accompanying "harm" in §3's definition of "take" refer to actions or effects that do not require direct applications of force. Second, to the extent that it read an intent or purpose requirement into the definition of "take," it ignored §9's express provision that a "knowing" action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. Pp. 13-14.

(c) The Act's inclusion of land acquisition authority, §5, and a directive to federal agencies to avoid destruction or adverse modification of critical habitat, §7, does not alter the conclusion reached in this case. Respondents' argument that the Government lacks any incentive to purchase land under §5 when it can simply prohibit takings under §9 ignores the practical considerations that purchasing habitat lands may be less expensive than pursuing criminal or civil penalties and that §5 allows for protection of habitat before any endangered animal has been harmed, whereas §9 cannot be enforced until a killing or injury has occurred. Section 7's directive applies only to the Federal Government, whereas §9 applies to "any person." Pp. 14-15.

(d) The conclusion reached here gains further support from the statute's legislative history. Pp. 16-20.


Last updated November 27, 2006

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November 27, 2006