Supreme Court Agrees To Review Logging Case Extent Of Government’s Control Over Landowners At Issue

The Supreme Court will decide in an Oregon case whether destruction of a wildlife species’ habitat is banned by the federal Endangered Species Act.

The justices voted Friday to review a federal appeals court’s ruling that said modifying an endangered species’ habitat is not covered by the 1973 law.

The appeals court ruling last March was hailed as one of the timber industry’s greatest legal victories and called by environmentalists a grave threat to the federal protection of endangered and threatened species such as the spotted owl.

The ruling was appealed by the Clinton administration.

The federal law makes it a crime to “take” any endangered species, and by regulation that prohibition is applied as well to threatened species.

The law defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.” The Fish and Wildlife Service, a federal agency, has regulations defining “harm” to include “significant habitat modification” that leads to an injury an endangered species.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled by a 2-1 vote last March that the longstanding regulation is not authorized by the Endangered Species Act.

“We find that the (agency’s) definition of ‘harm’ was neither clearly authorized by Congress nor a reasonable interpretation of the statute, and … that no later action of Congress supplied the missing authority,” the appeals court ruled.

The Fish and Wildlife Service regulation had been challenged by timber industry members in Oregon.

Suellen Lowry, a lawyer for the Sierra Club Legal Defense Fund, called the appeals court ruling “very dangerous,” adding, “It attacks one of the most important elements of species protection - the habitat on which they depend.”

The government has the power to force private landowners to sell their land as a means of protecting endangered and threatened species, but paying the constitutionally required “just compensation” would be costly.

In the appeal acted on Friday, government lawyers said the appeals court “greatly exaggerated the breadth of ‘harm’ regulation.”

“The evidentiary burden required to prove ‘actual death or injury’ directly traceable to habitatdisturbing actions taken by a defendant imposes significant limitations on the regulation’s application,” the appeal said.

But timber industry lawyers urged the justices to reject the government’s appeal.

Under the invalidated regulation, they said, landowners risked criminal prosecutions or court injunctions “for engaging in many ordinary uses of their own lands.”

As an example, they said the Fish and Wildlife Services “has threatened enforcement actions if landowners do no preserve up to 3,960 acres around each spotted owl nest site.