Babbitt v. Sweet Home Chapter, Communities for a Great Oregon – Oral Argument – April 17, 1995

Media for Babbitt v. Sweet Home Chapter, Communities for a Great Oregon

Audio Transcription for Opinion Announcement – June 29, 1995 in Babbitt v. Sweet Home Chapter, Communities for a Great Oregon

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–I’m sorry.

But you have the word “wound” to take care of that.

No, I’m sorry.

John A. Macleod:

Well, not necessarily.

Go on.

John A. Macleod:

If you… when we go to the zoo, we see, for example, signs that say, don’t feed the animals.

I’ve asked a lot.

John A. Macleod:

If you feed an animal something that is not good for the animal, you may injure it in some way without actually wounding it, so we do think that it really does have a different meaning.

Your point… I take it your point is it’s inconsistent because the statutory modification in effect recognized the regulation as being reasonable, I suppose.

May I ask you–

Edwin S. Kneedler:

That’s right, and also on the face of the act we think refutes respondent’s suggestion that it refers only to such things as hunting that are aimed at or directed at a specific animal–

–And that would not be–

No, but you don’t–

–Can you think of another example?

Edwin S. Kneedler:

–because the statute–

That’s ingenious, but can you think of another one?

–May I just interrupt you?

[Laughter]

I take it you’re not arguing that in the absence of a regulation the word “harm” would cover what you claim it covers in this case?

I think that’s a pretty good example.

Edwin S. Kneedler:

–Well, there still might be a question, if the Secretary had given it that interpretation, but here, under Chevron, the Secretary has given it this interpretation for 17 years this Court recognized that Congress responded to it and built upon that, and we think at least under Chevron the word “harm” carries that meaning, and Congress recognized that by saying that you can get a permit to engage in activity that harms a species incidentally, and not for the purpose–

It’s an excellent example.

Mr. Kneedler, the later statutory modification which acknowledges, let’s assume that it does, that it includes habitat modification, I would find that persuasive if what that modification did was add some new restriction or talk about the nature of the restriction that had previously been imposed, but all this amendment does is enable you to get out of the restriction.

Can you think of another one?

Let’s assume I’m a Congressman who voted for the original Endangered Species Act, and when I said, in that statute, it’s unlawful to take any protected species, I thought I meant it’s unlawful to take any protected species, and I find that this agency has interpreted “take” to mean no citizen in the country can do anything to his land if it harms a species.

I suppose a hunter who wanted to get this game by poisoning instead of by shooting it, you could get a lot of game that way.

And I say, my God, that’s terrible, and I try to get enough votes to get that repealed, to get that interpretation repealed in the statute.

And he would be hunting… and he would be hunting, and he would be trapping and capturing.

I cannot get enough votes.

And wouldn’t be wounding.

There have never been enough votes to enact it, but there are also not enough votes to repeal it.

John A. Macleod:

And wouldn’t be wounding.

So I say, well, at least let’s give Fish & Wildlife the authority to grant an exemption from it.

No, but the point is, he’d be within the statute without the word “harm”, in his example.

It won’t be as bad.

You have responded to Justice Ginsburg by finding one example of a harm that is not otherwise covered by the statute.

In fact, require them to consider exemptions from it.

It’s a very unlikely example that you’re trying to feed some endangered species in the zoo.

That’s a perfect explanation of that modification, and it at no time gives you a majority in the Congress who thought that every citizen in the country can be prevented from using his own land if that modification is going to modify… is going to harm wildlife.

[Laughter]

Edwin S. Kneedler:

–Well, Justice Scalia, in the background of both the 1978 and 1982 amendments there is no suggestion that this was a crazy interpretation of the word “harm”.

Can you think of any other example that the word “harm” covers and would not otherwise be covered by the statute?

Edwin S. Kneedler:

Congress proceeded on the assumption that this was a valid interpretation of the word “harm”.

John A. Macleod:

I was actually building up, Justice Stevens, to feeding them in the wild.

Edwin S. Kneedler:

There was a proposal by Senator Garn to amend “harm”… to amend “take” to exclude forestry practice–

John A. Macleod:

I didn’t mean to confine them to the zoo.

But is that assumption binding upon us?

John A. Macleod:

But another example might be, we’ve heard from Mr. Kneedler a couple of times about the Second Circuit’s decision in the FMC case.

If Congress enacts a mitigating statute based on what is an incorrect interpretation of the statute, does that make the statute suddenly change its interpretation?

John A. Macleod:

That’s another example.

Edwin S. Kneedler:

–It may not change… it doesn’t… it’s not binding in that respect.

John A. Macleod:

If you situation, so that would be a covered–

Edwin S. Kneedler:

At the very least, though, we would think it reinforces the reasonableness of the Secretary’s prior interpretation under Chevron by adding a permit program when Congress could very well have altogether exempted such a proposal, which Senator Garn offered and withdrew.

But as Justice Breyer’s question points out, it seems to me that what you’re saying is not even consistent with the common law of crimes.

They didn’t have the votes for it.

If two people in two different instances shoot at little children, one because he hates children, the other because he just wants target practice, they’re both equally culpable, and your position wants us to distinguish between those two instances.

Having the votes for it.

That’s not even standard criminal liability law.

Having the votes to overturn it is quite different from having the votes to enact it in the first place.

John A. Macleod:

–Justice Kennedy, I think there is a distinction between shooting at children intending to kill them and being negligent in the way you conduct your target practice, and again, it may well be that if you are negligent in that circumstance, that may be enough to find it to be a take.

If they never had the votes to enact it in the first place, we shouldn’t be enforcing it upon all the citizens of the country.

Well–

Which do you think is more persuasive, Mr. Kneedler, speculation about what Congress might have done, or the actual record of what they did in the legislative history?

–Mr. MacLeod–

Edwin S. Kneedler:

Well, we think the 1982 amendments are immensely significant, because of the exemptions that Congress did enact, and enacted under carefully limited circumstances, to enable the Fish & Wildlife Service to ensure that the incidental takes that may occur as a result of land development and other activities do not jeopardize the species, and significantly, the conference report is unusually explicit in the type of situation that Congress was driving at in this situation, and that is a conservation, a habitat conservation plan, and the conference report uses this language: a habitat conservation plan to preserve the feeding and breeding habitat of a butterfly, xx butterfly on San Bruno Mountain, south of San Francisco, which could not have gone forward under the harm legislation.

–A child and a duck is the analogue, right?

Edwin S. Kneedler:

Congress then, explaining the way the 1982 permit process was supposed to work, endorsed what was done there, which was a cooperative effort among the Fish & Wildlife Service, the county, municipalities, and the private developer–

John A. Macleod:

Forgive me, Justice Scalia?

You say Congress endorsed it.

I think the analogue is a child and a duck.

How did Congress go about–

Shooting at a duck and hitting a child would be the situation.

Edwin S. Kneedler:

–By each House passing the conference report which contained this explanation of–

John A. Macleod:

If you didn’t have a child but you had another animal, yes, that would be, we believe, an incidental take under this statute.

–Well, a conference report isn’t the same thing as legislation.

Mr. MacLeod, isn’t the fact that the mens rea, in fact the mental element, both civil and criminal, is knowing, the answer to what I take is your argument… strike the word “take”.

Edwin S. Kneedler:

–I… that is certainly true, but–

What I assume to be your argument–

And each House doesn’t pass it.

[Laughter]

What do you mean, each House passing… did the whole House vote on the conference report?

–that in fact purposeful activity is the norm in this string of verbs, and therefore “injure” must be read as implying some purposeful activity?

Is there a vote on a conference report?

If the mens rea is knowing, in the statute, then in effect Congress is saying purposeful activity is not the requirement, and that makes the answer to Justice Breyer’s objection even more difficult, doesn’t it?

I thought they vote on the bill.

John A. Macleod:

Purposeful activity is the requirement, we believe, Justice–

Edwin S. Kneedler:

–They vote on the bill, but it is often expressed in terms of approving the report of the conference committee.

Then why is the state of mind expressly provided to be knowing?

Edwin S. Kneedler:

In any event, what was clearly before Congress was an explanation of how this was expected to work, which was a situation such as that, or for a small landowner who wanted to develop land or timber harvest, to come in with a proposal to say, this is how I plan to do it.

John A. Macleod:

–Because you may well have a situation where you are… where you are fishing for shrimp, for example, and you cast down a net intending to catch shrimp, and you pull up an endangered turtle, your act is purposeful in the sense of fishing, it was an action directed at wildlife, but you have pulled up something–

Edwin S. Kneedler:

I plan to take the following precautions to minimize the harm to this protected species, and you can get a permit, and that, in our view, is a very sound way for Congress to have enacted a statute and for it to be administered.

Well–

Edwin S. Kneedler:

It’s much like Riverside Bayview Homes, where the Court emphasized that the fact that there was a regulatory regime affecting adjacent wetlands did not mean that no one was going to ever be able to fill adjacent wetlands.

John A. Macleod:

–that you didn’t have in mind.

Edwin S. Kneedler:

It just meant that there was a permit program so that that particularly sensitive environmental area would be scrutinized by the expert agency.

–true, but there’s another example, and that is the case in which you put down the net and you don’t want to catch the endangered species.

Edwin S. Kneedler:

The same thing is true here.

That’s not what you want to do, but you know that that is, in fact, what you are going to accomplish, and the statute says, by using the word “knowing”, that in fact your knowledge is sufficient to make you liable under the statute.

Mr. Kneedler, do I understand that these respondents, none of them have… there’s been no enforcement against any of them.

I mean, you can’t… it makes no sense, it seems to me, to say that… for Congress to provide that you must knowingly commit a purposeful act.

There’s been no application for a permit.

The state of mind has got to be knowing, and if the state of mind is knowing, then there isn’t a purposeful element in the verbs, and if you know that your net is going to pull up the endangered species, that’s enough, and that, I suppose, is consistent with the Secretary’s regulation, that if you know the destruction of the habitat is going to result in the killing and the injury, that’s enough.

Edwin S. Kneedler:

That’s correct.

John A. Macleod:

It’s not enough in the context of the destruction of the habitat, because what Congress focused on was conduct and not on effects.

Edwin S. Kneedler:

This has come up as a facial challenge, and so there’s nothing before the Court in terms of how the permit application would be reviewed, and whether respondents could then argue that if a permit was denied, that it was improperly denied, but here we have a challenge to a regulation on its face, arguing essentially that Congress categorically excluded harm resulting from habitat modification.

John A. Macleod:

It is… if Congress wanted to–

It didn’t categorically include, would be a better… it didn’t include, would be a better way of putting it.

But if you know… but the regulation… it seems to me the most you can get out of that argument is that by going to effect, the regulation adds an element which is not covered by knowing in this sense, that the regulation may cover the case in which you don’t know that you’re going to get the species in the net, or when the tree goes down, but on the other hand, it seems to me you’re wrong when you say it’s got to be purposeful activity.

Edwin S. Kneedler:

But the common theme, we think, that runs throughout the definition of TVA v. Hill were of national importance, both–

So that that can’t be the argument that wins the case.

But Mr. Kneedler, I’m not sure that I understand the other side’s argument as categorically excluding the habitat modification as a step which might lead to liability.

The argument that wins the case for you, I suppose, has got to be that this goes beyond merely knowing activity to an activity which has an effect which is not known at the time it’s committed, but that’s not a purposeful argument.

If… I don’t understand the other side to be arguing that if I had a spotted owl nesting in the tree outside, and I went outside and cut the tree down for the express purpose of killing the owl, who would go down with the tree and be crushed, that that would be excluded from liability.

John A. Macleod:

–Well, we don’t believe… Justice Souter, for example, under the Secretary’s regulation, which is what we really are challenging, which is what’s at issue here, once you get to injurious effects, the inquiry goes no further.

It’s habitat modification… I think what they’re arguing is simply that habitat modification which does not have a purpose to kill or eliminate the species by these various means is excluded.

John A. Macleod:

If you’re driving down the highway, for example, and you hit a listed insect on your windshield, under the Secretary’s regulation, you have committed a take.

Edwin S. Kneedler:

–That–

John A. Macleod:

We say that’s not a take, but in that circumstance you weren’t asking all of the relevant questions about the nature of the underlying conduct that Congress put in.

Some habitat modification can be an interim step, but it’s not a separate generic category.

But you’re making a facial challenge, and I suppose if there are instances, and a substantial number of instances, in which knowing conduct would in fact be consistent with the statute, that I suppose is the end of your facial challenge, and the most that you could argue would be in a separate case, that the regulation should not be construed to cover, could not be construed to cover the case in which you had no reason to know that the representative of the species was going to be hurt, but you don’t get that by a facial challenge, do you?

Edwin S. Kneedler:

–Right–

John A. Macleod:

We believe that the facial challenge falls in this circumstance, because every single time you apply the regulation you apply it with a different inquiry than the inquiry which is appropriate under the statute.

I think that’s what they’re arguing.

John A. Macleod:

It is simply not–

Edwin S. Kneedler:

–That may be, but we think that’s a question of proximate causation and degree and a factual question of whether the–

No, but that… I mean, if I understand what you’re saying, you’re simply saying the inquiry under the statute is whether there was a purposeful act the conscious object of which was to destroy the species through destruction of this individual member of it, and if that is not true, then there are going to be loads and loads of instances in which the Secretary’s reg is in fact going to cover the kind of knowing conduct which I suppose the mens rea indicates was… requirement indicates was the object of the statute.

And their answer to that argument is that once you get beyond the sort of specific intent to kill through habitat modification, you’re getting beyond the purposeful activity which is the common thread of all the more specific verbs in the definition.

John A. Macleod:

–Well, we have in this case, Justice Souter… we have made a challenge to the statute as being ultra vires.

Edwin S. Kneedler:

–But purposeful… purposeful… two responses to that.

John A. Macleod:

We really aren’t dealing with the knowing aspect of it.

Edwin S. Kneedler:

First of all, within the definition of “take” itself, “purposeful” is not a common thread.

You mean to the regulation.

Edwin S. Kneedler:

One could kill–

John A. Macleod:

I’m sorry, Mr. Chief Justice, yes, I mean the regulation.

Why isn’t it a common thread, except for the generic word “harm”?

Where is the knowing requirement?

Edwin S. Kneedler:

–Well, “kill”, for example, in the hypothetical I was… or the case I was describing before of chemicals spilled into a pond that would kill a bird that landed there, the chemicals were not put in the pond for the purpose of killing the wildlife, and yet it had that effect.

What text of a knowing requirement are we talking about?

“Kill” is a species of “take”.

John A. Macleod:

The knowing requirement is in the penalty provisions, Justice Scalia, and those are at–

It carries a purposeful connotation, doesn’t it?

Section 1540–

Edwin S. Kneedler:

Well, we think it does not, and the other reason we think it does not is because the criminal and civil penalty statutes contain a scienter requirement of knowledge, but in the separate sections that deal with civil penalties and criminal penalties, so for an injunctive action you don’t need to prove knowledge, and there’s no reason why Congress would have wanted to show knowledge.

John A. Macleod:

–Yes, that’s correct–

Edwin S. Kneedler:

What Congress was focusing on was the impact on these species which Congress determined to be of national importance, not the blameworthiness of individuals when it comes to civil injunctive actions.

–(b)?

Mr. Kneedler, do you know of any other Federal criminal statute that provides for an attempt crime that is attached to something other than a purposeful crime, because this definition, which includes “harm”… the definition of “take” it says means to harass, harm, pursue, hunt, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.

John A. Macleod:

–Justice O’Connor.

Now, what do you mean?

John A. Macleod:

(a)… (b) is the criminal penalty, and that’s in the respondent’s brief at page 5a.

This means to attempt to cut down a forest?

Is there anything unfair… the other big sort of question that I’d had is, you see, once I get out of this mens rea thing, to get onto a different matter, I mean, you can find a mens rea that… then you win, but if we reject that, then I can’t think of a way of trying to take “habitat” out of the word “harm”.

Edwin S. Kneedler:

I think it would encompass a situation if you… for example, if you attempted to block passage of salmon to a spawning ground but were unsuccessful, that would be an attempt to harm the salmon species.

It seems that some instances you’d have it there, some instances you wouldn’t, and that your clients and the others who are worried about extreme applications of this thing ought to go and, case by case, say this is an extreme application, if they’re accused of a crime, say the criminal element is not there, if their land is taken, say maybe they have to have compensation, but what I can’t see is the facial challenge, where you’d say they’re all out the window.

Attempt does suggest a very purposeful intent.

Now, I’d like a response to that.

Edwin S. Kneedler:

Yes, but that’s the second half of the definition, or attempt to do any of those things.

I’m putting that in order to get a response from you.

Edwin S. Kneedler:

The first half of the definition does not contain the word “attempt”.

John A. Macleod:

Yes.

But you’re saying you don’t have to attempt to stop the salmon from reaching their breeding ground.

John A. Macleod:

The facial challenge is not out the window because the very nature of the conduct which is specified by the regulation, namely the effects of any activity, whatever it may happen to be, on listed wildlife, prevents any inquiry by the agency or by the court about the standards that the Congress established in defining “take”.

That’s your whole point.

John A. Macleod:

The nature of the conduct, it prohibited certain types of conduct not only through the words, the ten definitional words used to define 1538(a)(1).

You don’t have to be attempting to doing that.

John A. Macleod:

These are all words of conduct.

All you want to do is build a dam or something, and so the attempt would be the attempt to build a dam.

John A. Macleod:

They say, do not do these things.

Edwin S. Kneedler:

But for criminal liability you would have to have knowledge of the consequence.

John A. Macleod:

When we think in terms of thou shalt not kill, for example, we’re thinking, thou shalt not murder.

Knowledge–

John A. Macleod:

We’re not thinking of an accidental death.

Edwin S. Kneedler:

But for the action itself, no, you would not have to have knowledge, and again, there’s no reason why Congress would have wanted that for an injunctive action, because what Congress was focusing on was the impact on the species.

John A. Macleod:

When we say, do not harm someone, we understand that as an active prohibitory word to mean, do not use some forceful conduct, some direct action against a species.

Edwin S. Kneedler:

Congress did not want the species to be incidentally, accidentally killed, or have its essential feeding or sheltering grounds eliminated, and so–

But in judging whether or not the actor is culpable under that standard, we often look to find what are the logical, likely, and natural consequences of the acts, and that’s the equation that you want to excise from this analysis, it seems to me, which brings us almost full circle to where we began, asking you how to distinguish this purposeful interpretation you’re putting forward from what we often and always do in criminal law and in mens rea analysis.

–Your argument is that the act may be satisfied by a completed act which isn’t purposeful, but a purposeful attempt–

John A. Macleod:

Justice Kennedy, we don’t say that it’s inappropriate or irrelevant to look at effects.

Edwin S. Kneedler:

–Will satisfy it as well.

John A. Macleod:

We just say that you shouldn’t look to the effects alone, but under the regulation, that’s what you’re left with.

Edwin S. Kneedler:

That’s correct.

So that you can look to the effects.

Edwin S. Kneedler:

If I may, I’d like to reserve the balance of my time.

John A. Macleod:

You can look at the effects as long as they’re one of a number of relevant inquiries under the statute.

–Very well, Mr. Kneedler.

Mr. MacLeod, I thought you have to start with the take.

Mr. MacLeod, we’ll hear from you.

I thought your position was that what there has to be is a taking-type activity.

John A. Macleod:

Mr. Chief Justice, and may it please the Court:

If you are engaged in taking animals, and you know that the taking of some animals may take one of the protected species, you are knowingly taking the protected species.

John A. Macleod:

I’d like to address three points this morning in response to the Government’s argument.

Correct, Justice Scalia.

First, I’d like to talk about the text and structure of the act, and show what 9 Congress was focused on certain types of conduct, and wasn’t attempting to establish a broad, regulatory authority over any form of human activity based solely on what its injurious effect might be to wildlife.

But if you engage in an activity which is not a taking activity, you are not knowingly taking.

John A. Macleod:

Secondly, I’d like to talk about some of the hard cases that come up under the statute, and in doing so, I want to emphasize that the regulation, because it focuses on effect and not on the types of conduct with which Congress was concerned, will assure that the wrong questions are asked about whether a take occurred in every instance.

Correct, Justice Scalia.

Finally, I’d like to say something about the 1982 amendments and the meaning of incidental take.

So if you’re cutting down trees, you’re not knowingly taking, even though you may kill an owl, but if you’re shooting some other species, knowing that there are owls in the vicinity, and you shoot an owl, you are knowingly taking an owl.

John A. Macleod:

The 1973 Congress focused on two threats to rare species.

That is absolutely correct.

It wanted to stop the destruction of their necessary habitat, and it wanted to stop people from hunting and killing them and trading in them.

That would be an incidental take, but it would be a take nonetheless.

It addressed the habitat destruction issue in sections 5 and 7.

But that… but going back to Justice Kennedy’s example, you chop down a tree and you know it’s going to fall on someone’s house and kill the occupant, but you don’t care about killing him, you just want to cut down the tree, is that insulated from criminal liability, and what’s the difference?

John A. Macleod:

Those provisions say that that’s what they’re about.

It’s certainly not insulated under the regulation, Justice Stevens, that much is clear.

Section 5 in particular provides a very effective means for addressing the very problems that the Secretary claims authority to regulate under section 9.

No, but under the common law of murder, isn’t that… even though you didn’t intend it, but you just know it’s going to happen, that somebody’s going to get killed as a result of your cutting down the tree–

John A. Macleod:

It is a land acquisition authority in which Congress said to the Government, if you need to protect habitat, you have the authority and the funding to do so.

There is a foreseeability, a knowledge element, an opportunity to avoid–

John A. Macleod:

Section 9 has a very different purpose.

–And we have precisely the same thing in this area.

John A. Macleod:

It zeroed in on the issue of hunting and killing rare animals, and of putting an end to what was becoming a thriving business of trafficking in them, and what it says is very clear.

Cut down the tree, it’s going to kill the last particular bird, or something.

John A. Macleod:

It establishes a series of prohibited acts.

–Well, you don’t know that it is, Justice Stevens.

That’s in fact the very title of section 9, “Prohibited Acts”, and what it says is that it is unlawful to import–

Oh, you do know it.

Well, now, are you reading from somewhere, Mr. MacLeod?

Under your assumption, you know it’s going to kill, but you don’t care, because that’s not what you’re interested in.

John A. Macleod:

–Your Honor, Mr. Chief Justice, this is in section 9(a)(1).

Well, let’s assume you don’t know that it’s going to kill.

Where may we find it?

Yes, but the hypothetical you’ve got to confront is one where you do have that knowledge.

Is it in the appendix to the petition?

My golf course example, you know you’re going to extinguish the habitat, and you said the only way you can avoid that is to buy the land, and I don’t understand how you get around Justice Kennedy’s question.

John A. Macleod:

In the petitioner’s brief, Your Honor, at page 14a.

When you get to the point of knowing that you’re going to do something, if you didn’t have the regulation, and if that case were brought, if there were an enforcement action brought against you based on that set of facts, you may well have a result that would have found that to be a take, but that’s not–

Thank you.

I thought you–

John A. Macleod:

What Congress focuses on in section 9(a)(1) and its series of prohibited acts is the importation, or the exportation, or the possession, or the selling, or offering for sale, or transportation, or delivery, or shipment, or taking of protected species.

–I don’t see how you could–

John A. Macleod:

The focus that you have there is on–

–concede that you’d be guilty of the common law crime of murder if you did that but not of the common law crime of taking.

William H. Rehnquist:

We’ll hear argument first this morning in Number 94-859, Bruce Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.

May I ask… may I give you a hypothetical that troubles me and get your explanation for it?

John A. Macleod:

–Not of the common–

William H. Rehnquist:

Mr. Kneedler.

Say I’m a real estate developer.

The thing is, you knew you were going to kill him, but you would not know you were going to take him because you were not engaged in a taking activity.

Edwin S. Kneedler:

Mr. Chief Justice and may it please the Court:

I want to build a new development in the Everglades, a new golf course, say, and I have no desire to harm any endangered species, but I do know that if I build this golf course a certain rare bird will become extinct.

You were cutting down a tree.

Edwin S. Kneedler:

The court of appeals in this case invalidated a longstanding regulation of the Secretary of the Interior that interprets the term “harm” as that term is used in the Endangered Species Act’s prohibition against the taking of listed species.

Is that a taking?

It depends on what word you’re using in defining the crime.

Edwin S. Kneedler:

The regulation defines the statutory term “harm” to mean an act which actually kills or injures wildlife.

John A. Macleod:

–No, Your Honor, not under the statute as we read it.

–It does, and the fact is, Congress could well have written this prohibition in terms of effects instead of in terms of conduct.

Edwin S. Kneedler:

The second sentence elaborates upon that basic definition in one particular circumstance.

John A. Macleod:

It is, of course, under the regulation, because–

If Congress did do that–

Edwin S. Kneedler:

It provides that harm includes significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing its essential behavioral patterns, including breeding, feeding, or sheltering.

Yes, of course, under… but is it your view that in order to prevent that from happening the Government has to acquire that land?

One thing, though, and you said… I know we haven’t made it easy for you, but you said you were going to get to this.

Edwin S. Kneedler:

The court of appeals invalidated this regulation on its face.

John A. Macleod:

–That is the sure way to avoid it.

[Laughter]

Edwin S. Kneedler:

The court concluded that the take prohibition in section 9 of the act applies only to the direct applications of force against wildlife.

John A. Macleod:

Now, there’s another protection before you get to the land acquisition authority, and that’s the protection of section 7(a)(1) of the statute, which does impose on the Federal Government a duty to avoid jeopardy, as you all–

I mean, in the 1982 amendment, didn’t Congress act consistently with what I’m going to call generally the knowing interpretation here as distinct from the purposeful interpretation?

Edwin S. Kneedler:

Respondents argue for a comparably narrow interpretation saying that the take prohibition, including harm, applies only to conduct that is purposeful and directed at wildlife.

But that’s on Government projects.

John A. Macleod:

–In adopting the incidental take provisions?

Edwin S. Kneedler:

In our view, both of these narrow constructions are wrong.

John A. Macleod:

–Well, it’s not… it’s on Government lands, but it is also private lands–

Yes.

Edwin S. Kneedler:

A party challenging a regulation on its face bears a very heavy burden of showing that no circumstances exist under which the regulation may be valid.

I’m assuming an entirely private project.

John A. Macleod:

I–

Edwin S. Kneedler:

In this case, we submit that respondents have failed to show that Congress categorically excluded those deaths or injuries to protected wildlife that result from habitat modification.

John A. Macleod:

–Yes.

That’s the Government’s position.

Would you tell us preliminarily, Mr. Kneedler, what the mens rea requirement is under this statute?

John A. Macleod:

If–

What is your answer to that?

Edwin S. Kneedler:

For a criminal violation–

And is there any way to stop it, other than acquiring the land?

John A. Macleod:

–Congress acted in a way in adopting that provision which is consistent with either interpretation.

Yes.

John A. Macleod:

–Justice Stevens, in… if–

It is every bit as valid to say that an incidental take occurs in the course of a commercial fishing operation.

Edwin S. Kneedler:

–knowing.

What is 7(a)?

John A. Macleod:

In fact, that language has been in the Marine Mammal Protection Act since 1972, 10 years before Congress adopted this provision here.

Edwin S. Kneedler:

The statute specifically requires in section 11(b) that the person must act knowingly.

Give us a real section number, would you?

Why would Congress have needed an incidental exception if the activity… if it was required to prove purposeful activity in every case?

Edwin S. Kneedler:

That’s also true for–

I–

John A. Macleod:

I’m sorry, Justice Souter, I’ve lost your question.

Well, does that go to everything in the statute?

John A. Macleod:

–I’m sorry, Your Honor–

Well, if it’s a requirement for liability, civil or criminal, that the destruction of the species or the particular example which would lead to the destruction of the species be purposeful, i.e., it is my conscious object to destroy the species, or to destroy this individual member, why was there a need for an incidental taking exception?

Must a person know that an endangered… an animal that’s in an endangered species category–

–For those of us who are not–

John A. Macleod:

Because the taking action doesn’t have to be purposeful as against the protected species.

Edwin S. Kneedler:

–No–

John A. Macleod:

–Under the statute that’s section 1536(a)(1), and that is at petitioner’s brief at page 6a.

It can be purposeful against any species, and if it happens to sweep in the protected species, then that is a take.

–is at risk?

–Be sure you answer my question before you move on.

John A. Macleod:

That is an incidental take, but it’s a take nonetheless.

Edwin S. Kneedler:

–No.

John A. Macleod:

Thank you, Justice Stevens.

You took the wrong animal, but it’s still a take.

Edwin S. Kneedler:

The person must… need not know that.

John A. Macleod:

[Laughter]

Thank you, Mr. MacLeod.

Edwin S. Kneedler:

In fact, Congress specifically amended the act in 1978 to change the scienter from wilfully to knowingly, to change it from a specific intent crime to a general intent crime.

John A. Macleod:

The answer to the question, Justice Stevens, is when you’re dealing with purely private lands and there’s no Federal permitting or anything of that sort involved, yes, the answer to that is to use the land acquisition authority under section 5.

Mr. Kneedler, you have 5 minutes remaining.

But why wouldn’t a defendant in a criminal case have to know that a particular animal was endangered?

John A. Macleod:

Now, it’s possible, given a particular situation that if it went to a court, a court might find, in a given case, that if there was enough knowledge and the end result was clear, they might be willing to stretch the statute or the language a little bit to reach it, but certainly–

Edwin S. Kneedler:

Thank you, Mr. Chief Justice.

That is a question of knowledge of the law which is nor ordinarily required.

What statutory language would they stretch, the word “take” and the word “harm”?

Edwin S. Kneedler:

I’d like to stress that this is not a new question in the administration of the Endangered Species Act.

What is required, though, under our interpretation of knowingly, is that the person must know that the conduct in which he is engaging will have the prescribed effect on the protected wildlife.

John A. Macleod:

–Well–

Edwin S. Kneedler:

The regulatory interpretation adopted here has been in effect since 1975, and this Court relied… pointed to that regulation in terms of the… in TVA v. Hill in pointing out the pervasive protection for protected species under the act.

In other words, he must know that there is significant habitat modification for wildlife, and must know that it will impair the behavioral patterns, such as depriving it of food, depriving it of essential shelter.

That’s the only language… or “harass”, I suppose.

Edwin S. Kneedler:

And in TVA v. Hill, the construction of the Tellico Dam was not done for the purpose of harming the snail darter.

Well, do you think that our holding in X-Citement Video bears on the interpretation of the mens rea requirement?

John A. Macleod:

–Yes.

Edwin S. Kneedler:

It was not directed at the snail darter.

Well, in X-Citement Video, the Court made clear, I believe, that it was not necessary that the person know that the material was obscene in the legal sense, but what the person did have to know was the general character of the material in terms of its displaying explicit sexual acts involving minors.

John A. Macleod:

They may try–

Edwin S. Kneedler:

It was a classic incidental take by destroying the habitat of the snail darter that it depended upon for both spawning and feeding purposes.

Edwin S. Kneedler:

So here we believe what the person has to know is that his conduct will have the effect on the wildlife, but what… the only thing he doesn’t have to know is that the species is listed, and that was what Congress was driving at by changing the mens rea requirement from wilful to knowingly.

Those would be the words they’d have to stretch.

Edwin S. Kneedler:

That’s exactly the sort of application that respondents are now challenging many years after TVA v. Hill was–

But would have to know, for example… if you drained a pond on your property, you’d have to know that there is a particular frog or whatever–

John A. Macleod:

–to do that under the statutory purpose, but the–

That was an action for an injunction in TVA v. Hill?

Edwin S. Kneedler:

Right.

But under your view, they should not do that.

Edwin S. Kneedler:

–Yes, it was, and that’s we think significant.

–it is in the water–

John A. Macleod:

–That’s–

Edwin S. Kneedler:

The discussion of knowledge, knowledge is not in section 13… excuse me, in 1538, the basic prohibition against take.

That’s correct.

John A. Macleod:

[Laughter]

Edwin S. Kneedler:

Knowledge comes in only in the penalties, for civil penalties and criminal penalties retrospective penalties for prior conduct.

–before you could be–

John A. Macleod:

The answer to the question, Justice Stevens, is when you’re dealing with purely private lands and there’s no Federal permitting or anything of that sort involved, yes, the answer to that is to use the land acquisition authority under section 5.

Edwin S. Kneedler:

For an injunctive action, you sue for a violation of section 1538, which has know knowledge requirement in it, and that’s consistent with the way Congress would have wanted the scheme to work.

That’s correct.

John A. Macleod:

Now, it’s possible, given a particular situation that if it went to a court, a court might find, in a given case, that if there was enough knowledge and the end result was clear, they might be willing to stretch the statute or the language a little bit to reach it, but certainly–

You mean, you can stop somebody from cutting down trees on his land even if he doesn’t–

–Do you think that that Palila case from Hawaii is consistent with your view?

What statutory language would they stretch, the word “take” and the word “harm”?

Edwin S. Kneedler:

If you can–

We do.

John A. Macleod:

–Well–

–he’s violated the act, although he’s not subject to criminal penalties, even if he doesn’t know that there’s–

Edwin S. Kneedler:

What… the position… there may be some question on the facts whether the anticipated harm to the protected bird there was sufficiently immediately likely to happen, but the analysis that the Court applied as a legal matter we believe is correct, because there–

That’s the only language… or “harass”, I suppose.

Edwin S. Kneedler:

–If you can show that the habitat modification is going to actually kill or injure the species by significantly impairing its behavior, and–

What actual injury or death was found there, do you know?

John A. Macleod:

–Yes.

–There’s no state of mind requirement, then.

Edwin S. Kneedler:

–Yes.

John A. Macleod:

They may try–

Edwin S. Kneedler:

–Not for an injunctive action, but that’s typical in civil injunctive actions.

The goats and sheep that were permitted to graze there were eating the shoots of the trees on which the protected bird depended for its entire habitat, in fact, for feeding, for shelter, and ultimately for breeding, and we think that this fits very readily into the normal understanding of what the word “harm” means.

Those would be the words they’d have to stretch.

But how could that possibly happen?

What about the word “take”?

John A. Macleod:

–to do that under the statutory purpose, but the–

I mean, wouldn’t you be in court getting the injunction, and you’d tell the person–

Let’s start with the word “harm”… “take”.

But under your view, they should not do that.

Edwin S. Kneedler:

Right.

We have here a statute.

John A. Macleod:

–That’s–

–that if he cuts down the tree, it’s going to kill the koala bear–

The operative provision of the statute is the provision that says it is unlawful for any purpose… for any person subject to jurisdiction of the United States to take any protected species within the United States.

In fact, they’re categorically prohibited from doing that.

Edwin S. Kneedler:

But again, that’s–

Right.

John A. Macleod:

–That’s correct as a matter of statutory language, Justice Stevens.

–and by that time he’d know it.

Edwin S. Kneedler:

Well, “take”–

John A. Macleod:

That is our view.

Edwin S. Kneedler:

–Right.

That word goes all the way back, and to take an animal, it’s clear what to take an animal means, absent a definition.

John A. Macleod:

Now, the focus of section 9(a)(1) is on these various kinds of specified conduct and on attempts to engage in those kinds of conduct.

And if it didn’t happen to be true you wouldn’t get the injunction.

To take an animal refers to hunters.

John A. Macleod:

Through this section 9 prohibition Congress wanted to stop, for example, such things as the importation of ivory.

Edwin S. Kneedler:

Right.

–Right.

This is 1539, number 1539?

Edwin S. Kneedler:

My only point is that–

Well, Justice Scalia–

John A. Macleod:

It’s 1538–

So I don’t see how there’d be no state of mind requirement.

Is that not correct?

38?

Edwin S. Kneedler:

–Right.

–Historically–

John A. Macleod:

–Mr. Chief Justice.

Edwin S. Kneedler:

My only point is that knowledge is not part of the basic prohibition.

Historically, I’ve never heard it used in any other way, to take an animal, to take a species of animal.

Oh, thank you.

Edwin S. Kneedler:

That’s the only point that I was making.

Okay, Step 1.

John A. Macleod:

Yes, that is–

Can’t we pick an uglier example than the koala bear?

Then, step 2, you’re going to say, but there is a definition of “take” in this case.

Page 14.

We don’t have any koala bears in this country, do we?

The definition happens to contain the word “harm”.

John A. Macleod:

–14a.

[Laughter]

The word “harm”, and every other word within that definition, can be interpreted in a way consistent with that old-fashioned meaning of “take”, but the agency here has chosen to take that one word, “harm”, and instead of giving it a meaning consistent with “take”, has given it a meaning that makes the word “take” an absolutely inappropriate word to use in that operative provision of the statute.

John A. Macleod:

Thank you.

We pick the cutest, handsomest little critter.

Edwin S. Kneedler:

–Well–

John A. Macleod:

It wanted to stop such things as the importation of ivory, which was causing elephants to be killed.

This Hill case, Mr. Kneedler, is that the case in which we described this statute, or Congress in this statute as having determined that endangered species must be protected no matter what the cost?

You’re saying you take an animal when you plow your land and accidentally destroy the habitat of the animal.

John A. Macleod:

It wanted to–

Is that where–

You have taken the animal.

Well, what do you say the mens rea requirement is for the criminal statute?

Edwin S. Kneedler:

Yes, and–

I mean, nobody… nobody would use the word in that sense.

What do you have to know?

–It really said that?

Edwin S. Kneedler:

–Well, the concept of “take” may have its… I think does have its roots in ancient wildlife law as you’re describing, but what Congress has done is built upon that an extrapolated from that, and in this–

John A. Macleod:

–Well–

Edwin S. Kneedler:

–But what… but–

Only if you choose to interpret the word “harm” the way you want to interpret it.

If it’s knowingly.

And you think that’s an adequate description of the statute and of what Congress did and of what Congress… no matter what the cost?

It can be interpreted another way that fits perfectly well within the concept of “take”.

John A. Macleod:

–It is knowing, but it’s also knowingly violates, so you have to know what the violation is, Justice O’Connor, and what that means, we think, is that you not only need to know… you need to know what a take is.

Edwin S. Kneedler:

–But that is the way this Court interpreted the statute, and the way Congress responded to that–

–But Congress… there were prior Federal wildlife statutes that did not contain the word “harm”, in fact did not contain the word “harass”.

John A. Macleod:

You need to know whether it is a violation or the form of conduct which we say it is under the statute, or simply is any kind of an act that may have an injurious effect, which is what the Government says it is under the regulations.

In dictum, and you want us to stand by that dictum.

Edwin S. Kneedler:

The Migratory Bird Treaty Act did not contain either of those words, and yet, for example, in the FMC case we cite in our brief, a corporation was convicted of a crime for discharging chemicals into a pond.

Does the defendant have to know that a particular animal is on the Endangered Species List and that the conduct will injure or kill it?

Edwin S. Kneedler:

–But significant dictum because it greatly informed the way Congress amended the act in both 1978 and 1982.

The birds landed on it, and died as a result of landing there.

John A. Macleod:

We would certainly say so, although the Government’s position appears to be that that is not the case.

Edwin S. Kneedler:

The construction of the Tellico Dam would have violated both section 7 and section 9, as this Court pointed out.

Edwin S. Kneedler:

Now, they died… it was not in the classic sense hunting.

Right.

Edwin S. Kneedler:

In 1978, Congress enacted the special exemption provision, exempting projects from section 7 if they were of regional or national importance, and then said any such project granted an exemption will also be exempt from the prohibition against taking in section 9 or any implementing regulations.

It was in that respect changing the habitat where the bird would land, and even under a statute that didn’t contain “harm”–

I’m just asking what your position is.

Edwin S. Kneedler:

Given the fact that this Court specifically referred to the harm regulation, that reference to regulations can only have been to the harm regulation, and the legislative history to the ’78 act shows that that was true.

Was that a case from this Court?

John A. Macleod:

Yes.

Edwin S. Kneedler:

And then again in 1982, Congress saying not at all costs, it created the special permit exemption to allow takes to go forward in particular circumstances.

–No, it wasn’t, it was… but it is–

John A. Macleod:

We would say that that knowledge is necessary, Justice O’Connor.

Edwin S. Kneedler:

But it wasn’t just in 1982.

Was that issue specifically raised within the case?

I would think that your position, if you really are serious about the word “take” and the word “harm” as a definition of “take”, I would think your position is that it is not enough to know that the animals will die.

Edwin S. Kneedler:

In 1973, the legislative history of the report shows that with respect to the word “harass” it would allow the Secretary to regulate, the House report said, whether intentional or not, regulate or prohibit activities of bird watchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young, in other words, interfere with their breeding activities.

–Yes.

Your intent must be to reduce those animals to your control.

This was on private land?

Edwin S. Kneedler:

It was argued in that case that that wasn’t “kill”, and the court of appeals in that case found that it was “kill”.

John A. Macleod:

That is very much our position, Justice Scalia.

You couldn’t go out on your back yard and watch a bird nesting if it might bother the bird?

Edwin S. Kneedler:

What Congress did in the Marine Mammal Protection Act was add the word “harass”, and then in this statute specifically added the word “harm”, and we think that Congress–

John A. Macleod:

I didn’t mean to convey otherwise.

Edwin S. Kneedler:

If it would significantly impair.

But we don’t regard a court of appeals case as any sort of a binding precedent.

John A. Macleod:

That’s very clear from the way Congress has used the term “take”.

Edwin S. Kneedler:

Not just momentarily disturb, but if you had lights on day and night–

–No, I understand that.

John A. Macleod:

It’s a term that’s used many times throughout the act.

You watched day after day.

Edwin S. Kneedler:

I’m just describing it in terms of how the predecessor statutes, other statutes on which Congress was presumably building when it added the words “harass” and “harm”.

John A. Macleod:

You focus… forgive me, Justice Breyer.

Edwin S. Kneedler:

–But interfered in a way so–

If I could, there are–

I mean, that’s one of the problems I was having, that the act doesn’t say take an animal, does it?

Edwin S. Kneedler:

[Laughter]

What was the operative word in that other statute?

It says, take a specie.

Edwin S. Kneedler:

Interfered in a way so that it would not breed.

It was also “take”?

John A. Macleod:

Correct, Justice Breyer.

All right.

Edwin S. Kneedler:

–It was… the statute included “take”.

And I don’t think Daniel Boone used to take species.

This doesn’t apply to all wildlife, though, as I understand it.

Edwin S. Kneedler:

It also included “kill”, and what the court was interpreting there was “kill”, but–

John A. Macleod:

No.

Edwin S. Kneedler:

It’s only endangered–

Mr. Kneedler, this regulation interpreting–

Not even Robin Hood.

We are talking about endangered species, are we not?

Edwin S. Kneedler:

–Yes.

John A. Macleod:

No.

Edwin S. Kneedler:

–Right, and that’s why we think Congress would have added the word “harm” and species.

–1975?

So that to me signaled that this might be a technical phrase, and then when I got to the technical part, which is in the definition, I did read this word harm, and so you’re talking about harming the specie.

Edwin S. Kneedler:

As Justice Breyer pointed out, the prior statutes referred to individual animals.

Yes.

Now, if a person goes out and puts guns around his property that shoot up into the air in order to stop sparrows, and knows that they’ll also stop protected birds, I take it that would violate the act, wouldn’t it?

Edwin S. Kneedler:

This one refers to harm to species, which includes depriving it of food or shelter or breeding grounds.

Edwin S. Kneedler:

It was promulgated almost contemporaneously with the passage of the act, soon after that, and significantly, then, this Court in its celebrated case in TVA v. Hill concluded in that case, pointed out not only that the construction of the Tellico Dam would have violated section 7 of the act, but that it would have also violated the take prohibition, because it would have destroyed the habitat of the snail darter that was necessary both for breeding, or for spawning, and for feeding.

John A. Macleod:

If you were intending to do that, yes.

Thank you, Mr. Kneedler.

Edwin S. Kneedler:

The Court pointed out that the act is pervasive in its protection for species, and pointed out with specific reference to the habitat aspect of the harm regulation, saying we don’t see how completion of the dam could other than harm the snail darter, so–

What you’re intending to do is protect your corn, so you put guns out, and the guns you know will not only kill the sparrows, they’ll also kill a few rare birds.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice.

How has the enforcement of the… that was a case involving the Government, but against… enforcement against private actors, how has that come about over the years?

John A. Macleod:

Yes–

William H. Rehnquist:

The case is submitted.

Before you were engaged in an explanation of the criminal prosecution prospect, but in fact, what has the enforcement experience been?

You know it.

Edwin S. Kneedler:

–There have only been seven criminal prosecutions.

John A. Macleod:

–Justice Breyer, that would be a taking.

Edwin S. Kneedler:

What Fish & Wildlife Service typically does is when a problem, or potential problem, has come to its attention, it notifies the landowner and invites the landowner to contact Fish & Wildlife Service, because this is not an absolute prohibition.

And on my understanding of the law, intent includes both an action that you wish to have happen, and also an action that you know will happen as a result of what you do, whether or not you wish it.

Edwin S. Kneedler:

The harm regulation does not establish an absolute prohibition.

John A. Macleod:

In your hypothesis it is an action directed at wildlife.

Edwin S. Kneedler:

What it does is trigger a requirement that a person, if he wants to develop his land or do something that would destroy critical or essential habitat, to apply for a permit and enable the Fish & Wildlife Service to suggest ways in which that activity could be done in a way that would minimize the harm.

All right.

It’s only absolute if Fish & Wildlife wants it to be absolute.

So it’s not directed at wildlife.

Edwin S. Kneedler:

Well, the Fish & Wildlife regulations in 50 C.F.R. 1732(b) say that Fish & Wildlife shall issue a permit if the statutory criteria–

What it’s done, it’s done for entertainment, but the person knows it’s going, as a consequence, to kill a few rare birds.

Whose regulations?

I take it that that person would have killed these birds, maybe all of them.

Edwin S. Kneedler:

–The Fish & Wildlife regulations–

There are none left, and I would imagine a person who did that, even if he did it for fun or for education, or for whatever reason, knowing that would come about, would have violated the act.

Which they can change.

Isn’t that so, or is it so, in your opinion?

Edwin S. Kneedler:

–But they have… since the statute was passed these regulations have provided that a permit shall be issued.

John A. Macleod:

It would not have violated the act–

Edwin S. Kneedler:

It’s designed consistent with the overall thrust of the act to protect the species to ensure that before someone goes ahead and destroys habitat in a way that may be completely unnecessary, that he obtain the advice and assistance of the expert agency in a way that it might be tailored.

It would not?

Edwin S. Kneedler:

For example, in the Spotted Owl, if a person applies for an incidental take permit, what the Fish & Wildlife Service may say is fine, go ahead, but preserve some habitat along the stream for the owls to fly from one habitat to another, or don’t clearcut, just take some trees in ways that would minimize the taking of protected species.

John A. Macleod:

–in our opinion.

Because when you take trees, you’re taking the owl.

It would not?

That’s the theory of this?

John A. Macleod:

It would have violated the regulation, to be sure, because the effect of killing the birds is present, and it may well be–

I mean, I note the way you use “take trees”.

So in other words, if a person goes out, and for any reason he wants… and he likes rare birds, but doesn’t care that much, and sets traps for other things which he knows will have the effect of killing the koala bears, the butterflies and everything else, even though he says personally, you know, I couldn’t care less, I’m doing this for fun, that person does not violate the act, in your opinion?

Edwin S. Kneedler:

Well, if I may–

John A. Macleod:

–In our opinion, no, although, Justice Breyer–

The whole spotted owl thing is based on the notion that people who are harvesting trees are taking owls?

Well, if I did not hold that position, and held the position that the person who was doing this for fun, or whatever reason, knowing that the koala bears would be destroyed, if I started out thinking that that would violate the act, then would there be any way to distinguish between the person who did that by shooting guns and the person who did that by chopping down trees, or the person who did that by modifying the habitat in other ways?

Edwin S. Kneedler:

–If I may, on the word “take”, there are other uses of the word “take” that I think are instructive here.

John A. Macleod:

–Well, I think that the hypothetical that you pose, Justice Breyer, is certainly a situation where a court might well say, let’s look at the character of the underlying conduct.

Edwin S. Kneedler:

For example, the other use of the word “take” that has been brought into this very case is that the Takings Clause of the Fifth Amendment, and there the Court has held that “take” does not, in the way respondents are arguing, mean only the physical appropriation of property.

John A. Macleod:

There was some recklessness about it.

Edwin S. Kneedler:

It also applies to regulations that restrict the use of property.

John A. Macleod:

There was some indifference to whether you were going to kill endangered birds.

Is that a realistic assessment of the meaning that was intended in this particular statute by the word “take”?

John A. Macleod:

In these circumstances, we will interpret the take prohibition to reach that.

Edwin S. Kneedler:

Well, but there’s… it’s a word with many, many meanings.

John A. Macleod:

The problem is–

I mean, you could say “take” means to commit theft, too.

You know, I want to know what’s right, not what the court… you see, I felt, as I read through it, to be totally honest, that there was no way to reach your position, which is certainly a reasonable position, but I didn’t understand how I could reach it without thinking that the person who goes out and kills the koala bears for fun is also outside the act.

You take something from someone else.

I mean, he kills them wanting to do some other thing, and since I don’t see how Congress could have put that outside the act, then I don’t see how to reach your position.

But obviously, that’s not the meaning used here.

That’s my whole point which I’m driving towards that I wanted to get a response from you.

Edwin S. Kneedler:

Well, but the there is… the word “take” also has a meaning of taking lives.

John A. Macleod:

–Well, I do believe that if he’s killing them for fun–

Edwin S. Kneedler:

For example, one might say that a flood that inundated a valley took 50 lives, and that’s not hunting, it is action which has the consequence of eliminating–

No, no, no, I don’t mean that.

It can mean, too, you know… he did a double take.

I misspoke.

It can mean a lot of things.

I mean, he intends to do some other thing which he knows as a result of shooting these guns in the air, or whatever, will have the undoubted consequence of destroying the koala bears, but doesn’t want that to happen, but just knows it will.

[Laughter]

John A. Macleod:

–Again, Your Honor, I believe that’s a circumstance which would not be covered under the act–

But when you say you “take” an animal, it means you hunt the animal and reduce it to your control by wounding it, by killing it, by harming it.

Yes, that’s right.

It means harming the animal, not harming the forest, which causes the animal to starve to death.

Now, my problem is, is that plausible?

To say that that’s taking an animal seems to me just weird.

I agree with you that the way to get to your position is to deny my hypothetical case, but then, to me it isn’t plausible that Congress wanted to pass this act and not prohibit the person who for other reasons is shooting the guns off and happens to wipe out the specie, knowing it.

Edwin S. Kneedler:

–But if you’re harming the animal in a way that affects its essential behavioral characteristics… for example, take the salmon that would be swimming up the river to spawn.

John A. Macleod:

–If I may, Justice Breyer, I think it is important to look at the various ways that Congress has used this term “take” throughout the act.

Edwin S. Kneedler:

If you put a barrier in the river so it can’t reach its spawning grounds, the salmon may die in the same period of time, but will not be able to reproduce.

John A. Macleod:

There is no circumstance in which its use of “take” in the various statutory provisions in which it comes up can be reconciled with the Secretary’s position.

Edwin S. Kneedler:

I think that’s “harm” within any meaning of that term, and again, the word “harm” is a statutory term.

Mr. MacLeod, why not look at the word “harm”… as I understand your position, it’s as though the word “harm” were not there.

Edwin S. Kneedler:

It’s not just “take”.

It has no independent significance.

Edwin S. Kneedler:

Congress supplied a definition which includes TVA v. Hill.

It’s going out there to trap the animal, to kill the animal, to collect the animal, but what function, independent of those other words, does the word “harm”… does it add anything?

Edwin S. Kneedler:

And then, if I may, in 1982, significantly, and this is very important, what Congress did was enact a permit program recognizing, specifically recognizing in the Senate report that “harm” means habitat modification that harms a species.

John A. Macleod:

“Harm” is a broad word in and of itself, in a vacuum, stripped of the context.

Edwin S. Kneedler:

What Congress did was enact a permit program that permits such takings, incidental takings to go forward, but only in specific circumstances, not that they’re entirely outside the act, but resting on the premise that they are covered by the harm regulation.

Can you give me an example, on your reading of this statute, where something would not kill, would not trap, but would harm, and therefore be covered?

Edwin S. Kneedler:

Congress said they may go forward if they are incidental and not the purpose of the conduct, and we think those statutory phrases are inconsistent with respondent’s position that “harm” or “take” applies only to purposeful conduct that is aimed at a species such as hunting.

John A. Macleod:

Yes, Justice Ginsburg.

Mr. Kneedler–

John A. Macleod:

For example, the Government has said that “harm” means injury.

–Because–

John A. Macleod:

We believe it is possible to injure an animal without doing any of the other words.