Does the ESA 'Take' prohibition apply to plant species?

No, the full Section 9 take prohibition is primarily for endangered fish and wildlife. For plants, the law prohibits removing, possessing, or maliciously destroying them on federal land, or removing them on private land in knowing violation of state law.

What is the difference between a Section 7 ITS and a Section 10 ITP?

An Incidental Take Statement (ITS) is issued to a federal agency as part of a Section 7 consultation when a federal action might result in take. An Incidental Take Permit (ITP) is issued to private parties under Section 10 for activities that do not involve a federal agency, but which require a Habitat Conservation Plan (HCP).

Can habitat modification be considered a 'Take'?

Yes, under the regulatory definition of 'harm' (which is part of 'take'), significant habitat modification or degradation that actually kills or injures wildlife by significantly disrupting essential behavioral patterns (like breeding or feeding) can constitute an unlawful 'take'.

Does the 'Take' prohibition apply to species listed as 'threatened'?

Not automatically by statute. However, the USFWS and NOAA Fisheries can and often do extend the 'take' prohibition to threatened species through special regulations known as 4(d) rules.

Categories: Court Info

Understanding the ESA’s ‘Take’ Prohibition for Business

Meta Description: The Endangered Species Act (ESA) ‘Take’ prohibition is a critical regulatory pillar impacting businesses and landowners. Learn the definition of ‘take,’ including the contentious ‘harm’ provision, the key exceptions like Incidental Take Permits (ITPs) and Habitat Conservation Plans (HCPs), and the severe civil and criminal penalties for non-compliance.

The Endangered Species Act’s ‘Take’ Prohibition: Critical Compliance for Landowners and Businesses

The Endangered Species Act (ESA), enacted in 1973, stands as one of the United States’ most comprehensive environmental laws, designed to protect imperiled species and the ecosystems they rely upon. While the ESA is known for listing species, its true regulatory power lies in Section 9, which establishes a strict prohibition against the “taking” of any endangered fish or wildlife species. This prohibition is not confined to federal land; it applies broadly to any person, encompassing private citizens, businesses, and government entities alike, making compliance a paramount concern for real estate developers, property owners, and industry operations nationwide.

The concept of “take” under the ESA is far broader than simple hunting or killing. It includes actions that are both direct and indirect, intentional and unintentional, making the scope of this legal restriction exceptionally wide and frequently a source of litigation. Understanding the nuances of the ‘take’ prohibition, especially the interpretation of ‘harm,’ and the mechanisms for obtaining exceptions is essential for navigating modern land use and development activities while avoiding significant civil and criminal penalties.

Defining the ‘Take’ Prohibition: Beyond the Literal Hunt

Section 3 of the ESA explicitly defines the term ‘take’ in the broadest possible manner. The statute specifies that ‘take’ means to:

harass,
harm,
pursue,
hunt,
shoot,
wound,
kill,
trap,
capture, or
collect, or
to attempt to engage in any such conduct.

Critically, this prohibition applies automatically to all endangered species of fish and wildlife. For threatened species, the US Fish and Wildlife Service (USFWS) or NOAA Fisheries Service must issue a special 4(d) rule to extend the Section 9 protections, though the USFWS often adopts a blanket rule to do so. Furthermore, the protections for endangered plants are more limited, typically only prohibiting their removal or malicious damage on federal land or in knowing violation of state law on private land.

The Controversial ‘Harm’ Definition

The term ‘harm’ within the definition of ‘take’ has been the subject of extensive legal debate. Agency regulations define ‘harm’ as: “an act which actually kills or injures wildlife. 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.”.

This interpretation, which includes indirect injury through habitat alteration, was famously challenged and ultimately upheld by the U.S. Supreme Court in the landmark 1995 case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. This ruling cemented the idea that destroying a species’ essential habitat can constitute a ‘take’ even if the action is not directly targeting the animal itself.

Case Law Spotlight: Babbitt v. Sweet Home (1995)

This Supreme Court decision confirmed the broad reach of the ‘take’ prohibition. By validating the Secretary of Interior’s regulatory definition of ‘harm’ to include habitat modification, the Court ensured that the ESA’s protections extend beyond direct killing, regulating land use on both public and private property. The Court found the regulation to be a reasonable interpretation of the statute, acknowledging that the spirit of the ESA is to prevent extinction, which often requires protecting the habitat upon which a species depends.

Navigating Compliance: The Incidental Take Exceptions

Recognizing that development and necessary infrastructure projects may inadvertently affect listed species, the ESA provides mechanisms to authorize an ‘incidental take’—a taking that is an unintended consequence of an otherwise lawful activity. These mechanisms provide a legal path forward for activities that have a potential impact, offering an exemption from the Section 9 prohibitions.

Table 1: Incidental Take Mechanisms

Mechanism	ESA Section	Applicability
Incidental Take Statement (ITS)	Section 7(b)(4)	Federal actions or actions requiring a federal permit (e.g., CWA permits). Requires a “no jeopardy” Biological Opinion (BiOp).
Incidental Take Permit (ITP) & HCP	Section 10(a)	Private actions on private land that lack a federal nexus. Requires a Habitat Conservation Plan (HCP) to monitor, minimize, and mitigate impacts.

Legal Expert Tip

For private landowners, securing an Incidental Take Permit (ITP) by developing a comprehensive Habitat Conservation Plan (HCP) is the primary method for ensuring lawful development. The HCP must demonstrate that the taking will be incidental, that impacts will be minimized and mitigated, and that the project will not appreciably reduce the likelihood of the species’ survival and recovery. Engage a qualified Legal Expert and biologist early in the planning process to ensure a compliant and defensible plan.

Severe Penalties and Challenges for Private Landowners

The penalties for violating the Section 9 take prohibition are significant, reflecting the law’s stringent nature. Violations can result in both civil and criminal liability.

Table 2: ESA Violation Penalties (As of 2023)

Violation Type	Maximum Civil Penalty (Per Violation)	Criminal Penalty
Knowingly Taking an Endangered Animal	$61,982	$50,000 and/or one year imprisonment
Knowingly Taking a Threatened Animal	$29,751	N/A (Generally linked to endangered species, but criminal penalties can apply to violations of regulations)
Other Violations (e.g., negligently harassing)	$1,566	N/A (As above)

For landowners, the challenge extends beyond legal liability; the presence of a listed species can drastically limit property use, leading to potential economic losses. The powerful, non-compensated restriction on land use can, unfortunately, create perverse incentives, sometimes leading to preemptive habitat destruction—a phenomenon known as “shoot, shovel, and shut up”—to avoid future regulation. This highlights the ongoing contention and the need for policy solutions that better align property rights with conservation goals.

Caution: The “Shoot, Shovel, and Shut Up” Incentive

The severity of the Section 9 take prohibition and its application on private property, particularly through the broad definition of ‘harm,’ can inadvertently create a negative incentive for landowners. The fear of costly land-use restrictions may prompt some to proactively destroy potential or unoccupied habitat to avoid the risk of a species becoming established and triggering ESA regulations. Collaborative conservation efforts and incentives are often cited as a better long-term strategy than relying solely on the regulatory stick of the take prohibition.

Summary: Key Takeaways on ESA Take Prohibition

The ESA’s Section 9 prohibits the ‘take’ of endangered fish and wildlife species, applying to all persons on both public and private lands.
The statutory definition of ‘take’ is extremely broad, including to harass, harm, pursue, hunt, wound, kill, trap, capture, or collect.
The regulatory definition of ‘harm’ includes significant habitat modification that kills or injures wildlife by significantly impairing essential behavioral patterns, a definition upheld by the Supreme Court in Babbitt v. Sweet Home.
Exceptions for ‘incidental take’ can be obtained through an Incidental Take Statement (ITS) for federal actions (Section 7) or an Incidental Take Permit (ITP) and Habitat Conservation Plan (HCP) for private actions (Section 10).
Violations carry steep civil penalties (up to $61,982 for knowing take of an endangered animal) and criminal penalties (up to $50,000 and one year imprisonment).

The Regulatory Power of ‘Take’

The ESA’s prohibition on ‘take’ is the core enforcement tool that protects individual animals, and by extension, their populations. It is a unique and powerful provision in environmental law, compelling federal agencies, developers, and landowners to proactively consider and mitigate the potential impact of their activities on listed species and their critical habitat. Compliance requires diligence, expert consultation, and often a significant investment in conservation planning.

Frequently Asked Questions (FAQ)

Q: Does the ESA ‘Take’ prohibition apply to plant species?: A: No, the full Section 9 take prohibition is primarily for endangered fish and wildlife. For plants, the law prohibits removing, possessing, or maliciously destroying them on federal land, or removing them on private land in knowing violation of state law.
Q: What is the difference between a Section 7 ITS and a Section 10 ITP?: A: An Incidental Take Statement (ITS) is issued to a federal agency as part of a Section 7 consultation when a federal action might result in take. An Incidental Take Permit (ITP) is issued to private parties under Section 10 for activities that do not involve a federal agency, but which require a Habitat Conservation Plan (HCP).
Q: Can habitat modification be considered a ‘Take’?: A: Yes, under the regulatory definition of ‘harm’ (which is part of ‘take’), significant habitat modification or degradation that actually kills or injures wildlife by significantly disrupting essential behavioral patterns (like breeding or feeding) can constitute an unlawful ‘take’.
Q: Does the ‘Take’ prohibition apply to species listed as ‘threatened’?: A: Not automatically by statute. However, the USFWS and NOAA Fisheries can and often do extend the ‘take’ prohibition to threatened species through special regulations known as 4(d) rules.
Q: What is the main legal challenge to the broad interpretation of ‘Take’?: A: The primary challenge has historically been the inclusion of ‘significant habitat modification’ within the definition of ‘harm,’ which plaintiffs argued exceeded the scope of the original statute. While upheld in the Sweet Home case, regulatory agencies continue to review and sometimes propose changes to this definition.

Disclaimer

This content is generated by an Artificial Intelligence and is for informational purposes only. It is not a substitute for professional legal advice, nor should it be relied upon as such. The Endangered Species Act and its regulations are subject to frequent change and judicial interpretation. Always consult with a qualified Legal Expert familiar with federal environmental law regarding specific compliance questions, land-use plans, and permitting requirements.

— Legal Expert, Environmental & Land Use Compliance Division

Endangered Species Act, ESA Take Prohibition, Definition of Take, Habitat Modification, Incidental Take Permit, Section 9 ESA, Babbitt v. Sweet Home, ESA for Landowners, Threatened Species Protections, US Fish and Wildlife Service, NOAA Fisheries

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