Problem
The Endangered Species Act of 1973 makes it unlawful for any person to "take" endangered or threatened species. The act defines take to mean to "harass, harm, pursue," "wound," or "kill." The secretary of the interior (Bruce Babbitt) issued a regulation that further defined harm to include "significant habitat modification or degradation where it actually kills or injures wildlife." A group of businesses and individuals involved in the timber industry brought an action against the secretary of the interior and others. The group complained that the application of the "harm" regulation to the red-cockaded woodpecker and the northern spotted owl had injured the group economically because it prevented logging operations (habitat modification) in Pacific Northwest forests containing these species. The group challenged the regulation's validity, contending that Congress did not intend the word take to include habitat modification. The case ultimately reached the United States Supreme Court, which held that the secretary reasonably construed Congress's intent when he defined harm to include habitat modification. [Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995)]
A. Traditionally, the term take has been used to refer to the capture or killing of wildlife, usually for private gain. Is the secretary's regulation prohibiting habitat modification consistent with this definition?
B. One of the issues in this case was whether Congress intended to protect existing generations of species or future generations. How do the terms take and habitat modification relate to this issue?
C. Three dissenting Supreme Court justices contended that construing the act as prohibiting habitat modification "imposes unfairness to the point of financial ruin-not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use." Should private parties be required to bear the burden of preserving habitats for wildlife?
D. Generally, should the economic welfare of private parties be taken into consideration when creating and applying environmental statutes and regulations?