Justices Debate Limits of Species Protection Law

With the Endangered Species Act already endangered in the new Republican-controlled Congress, the Supreme Court debated Monday whether to strip regulators of the authority to protect the habitat of threatened birds and other animals.

In a lively argument, the justices sounded closely split on what Congress meant when it passed the statute in 1973.

While the law makes it illegal to “take” an endangered animal through killing or capturing it, government regulators long have assumed that it also prevents private landowners from cutting trees or developing their property in a way that destroys the habitat of these animals.

As usual, leading the charge for the conservatives, Justice Antonin Scalia pronounced this view “just weird.”

“So you ‘take’ an animal when you plow your land?” Scalia asked mockingly of a government attorney.

A stickler for a literal reading of the law, Scalia questioned how the statute could mean that property owners could be barred from undertaking something as mundane as farming a field or cutting trees.

Chief Justice William H. Rehnquist agreed, noting that the government’s broad interpretation did not sound like “a realistic assessment of the meaning of the word ‘take.’ ”

But new Justice Stephen G. Breyer vigorously took up the cause of the environmentalists. In contrast to Scalia’s literalist approach, Breyer has made clear in previous decisions that he believes the court should adhere to Congress’ general intent in passing laws.

The reference to “take” a species is “a technical term,” Breyer said, that obviously goes beyond the hunting and capture of animals. “Daniel Boone didn’t take a species” when he shot animals, he commented.

Therefore, he continued, Congress must have intended to act broadly to protect threatened animals not just from hunters, but from actions that could result in killing them.

If landowners think regulators have gone too far they should challenge environmental restrictions “on a case-by-case basis,” he said, and not try to strip the law of its power.

Both environmentalists and property-rights activists say the case, known as Babbitt vs. Sweet Home Chapter, 94-859, is probably the most far-reaching argument involving the Endangered Species Act to come before the high court.

The case does not involve a specific land-use dispute, but instead arose when the timber industry sought a court order invalidating U.S. Fish and Wildlife Service regulations that prohibit “a habitat modification” in areas where endangered species live.

Based on the broad interpretation of the law over the last 20 years, judges have blocked logging in Pacific Northwest forests that are home to the spotted owl, and federal regulators have stopped development of Southern California coastal communities that are home to the California gnatcatcher.

In a famous 1978 case, the high court even blocked the completion of a huge dam because it threatened the snail darter, a tiny fish.

But loggers and property-rights activists contended that the actions went far beyond the simple words of the law, and last year they won a startling victory in the U.S. Court of Appeals here.

Two conservative judges, following Scalia’s literalist approach, said that the law bars only actions that “take” an endangered animal by killing or capturing it, but it does not extend to a “habitat modification” on private lands.

Lawyers for the Clinton Administration, joined by dozens of environmental groups, contested that ruling before the high court.

The stakes are highest on the environmentalists’ side because of the Republican control of Congress. Before, if the courts had adopted a restrictive view of the law, the environmental lobby could likely have won action on Capitol Hill to reverse the decision.

Now, however, the Republican majority has made clear that it wants to restrict federal regulation, not expand it. Indeed, even if the high court were to uphold the government’s view that the law covers development on private land, Congress could overturn that result by rewriting the law.

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg appeared to side with Breyer and the government lawyer defending the broad reach of the law.

Justice Clarence Thomas, who made no comment during the questioning Monday, usually sides with Scalia and Rehnquist.

The outcome almost surely depends on Justices Sandra Day O’Connor and Anthony M. Kennedy, two moderate conservatives who hold the swing votes. On several occasions, Kennedy followed up on Breyer’s suggestion that Congress must have intended to do more than simply stop hunters from killing endangered animals.

A ruling is due by the end of June.