Enacted in 1973, the Endangered Species Act (ESA) (16 USC §§1531-1543) is a relatively simple statute which is sweeping in its scope. The ESA seeks to protect species of fish, wildlife, and plants, and the habitat associated with those species. Congress has declared the purposes of the ESA (§2[b], 16 USC §1531[b]) are "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species ...," and to meet the United States' duties under other fish and wildlife protection treaties and conventions. The ESA regulates mainly by prohibiting persons from taking listed species and by protecting habitat.


The terms species and fish and wildlife are broadly defined under the act. Species includes not only true species, but also subspecies and distinct populations of fish, wildlife, or plants (ESA §3[16], 16 USC§1532[6]). Fish and wildlife is defined as any member of the animal kingdom, "including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body parts thereof" (ESA §3[8], 16 USC §1531[8]).


The concept of taking an endangered species is much more than simply, for example, shooting a bald eagle. Taking is defined broadly to include actions like "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct" (ESA §3[19], 16 USC §1532[19]).

The term harm is even more broadly defined in Fish and Wildlife Service regulations promulgated pursuant to ESA section 3(19), and later in the court case which first construed those regulations.1 Harm is defined as an act which kills or injures. "Such an 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" (50 CFR §17.3 [1990]).

The concepts of harm and taking were applied in the Palila v. Hawaii Department of Land and Natural Resources (649 F.Supp. 1070 [1986], affd, 852 F.2d 1106 [9th Cir. 1988]) case which involved a state-maintained flock of sheep which was destroying the habitat of the palila, an endangered species of bird. The palila relied on the vegetation on which the sheep were browsing. The court found that the actions of the sheep constituted harm, and therefore taking under the Fish and Wildlife Service's regulations which had been promulgated pursuant to the ESA.

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