seas.86/ The term "take" is defined in the following very broad terms:

The term "take" means to harass,
harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect,
or to attempt to engage in any
such conduct.87/

On its face, the definition is not necessarily limited to those activities which are intentionally and directly aimed at the protected animal, but could also include activities which indirectly and unintentionally cause harassment, harm, or even death to it. The Senate Commerce Committee, in reporting on a bill which contained the same definition, except for the omission of the word "harm", emphasized that its definition was intended "in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."88/

From the above, it would seem that the Act's broad definition of "take" encompasses all activities which destroy or have other substantial adverse effects on the habitat of an endangered species. The Fish and Wildlife Service, in its implementing regulations, has adopted this interpretation by defining the term "harm" to mean:

86/ 87/

88/

[A]n act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include,

16 U.S.C. $1538(a)(1)(B), (C) (Supp. IV 1974).
Id. $1532(14). For a comparison of this definition with
other definitions from earlier wildlife statutes, see Chap-
ter Eleven supra at text accompanying notes 17-19.

S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973). Notwith-
standing that declaration, the bill which the Senate Commit-
tee reported, when originally introduced, included "the de-
struction, modification, or curtailment of its habitat or
range" in its definition of "take." S.1983, 93d Cong., 1st
Sess. $3(6) (A).

but are not limited to, breeding,
feeding or sheltering; significant
environmental modification or deg-
radation which has such effects is
included within the meaning of
"harm".89/

Notwithstanding that interpretation, there are forceful
arguments that such a broad interpretation of the term
"take" is improper. First, there is a substantial
amount of legislative history that suggests a narrower
interpretation was intended. 90/ Second, none of the
litigation thus far brought under the Act has suggested
such a broad reading.91/ Finally, if "taking" compre-
hends habitat destruction, then it is at least doubtful
whether section 7 of the Act is even necessary.92/

89/ 50 C.F.R. $17.3 (1975) (emphasis added).

90/

91/

92/

The legislative history is summarized in Lachenmeier, supra
note 62 at 39-41 and in Note, Obligations of Federal Agencies
Under Section 7 of the Endangered Species Act of 1973, 28
Stan. L. Rev. 1247, 1251 n. 31 (1976). Both articles con
clude that the proscription on taking was not intended to
encompass indirect takings brought about by habitat altera-
tion. The latter article concludes that the Fish and Wild-
life Service's regulations to the contrary are "improperly
broad."

Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976), in-
volved a challenge to a proposed Corps of Engineers Dam
which would allegedly destroy part of the habitat of the en-
dangered Indiana bat. That action was principally based on
section 7 of the Endangered Species Act and on the National
Environmental Policy Act. It did include, however, a claim
that the proposed dam was a "taking" of the bat because it
constituted an attempt to harass or harm it. The court re-
jected the claim in a brief paragraph in which it held that
the alleged attempt could not "reasonably be found" and that
"[t]his Act, as any other, must have a reasonable construc-
tion." Id. at 1304. Similarly, in Cappaert v. United
States, 96 S. Ct. 2062 (June 7, 1976), which involved a
challenge to the right of certain private parties to conduct
activities threatening to destroy the only habitat of the
endangered Devil's hole pupfish, the Endangered Species Act
was scarcely mentioned. The issue of whether that activity
constituted a taking of the fish may not have arisen because
the litigation commenced prior to passage of the 1973 Act.
Section 7 is discussed infra at text accompanying notes 117-
45.

Other restrictions pertaining to endangered speccies include prohibitions against importation, 93/ exportation, sale or shipment in interstate commerce in the course of a commercial activity, 94/ and possession of any species taken in violation of the Act.95/ The Act also prohibits the trade of any specimens contrary to the Convention or the possession of specimens so traded.96/ For plants, all the same restrictions apply, except those pertaining to taking.97/ For threatened species of plants and wildlife, the Act does not specify any protective measures, but authorizes the Secretary to establish such restrictions as he deems "necessary and advisable" for their conservation.98/

93/ The Act defines "import" broadly to mean "to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States." 16 U.S.C. $1532 (7) (Supp. IV 1974).

94/

95/

96/ 97/

98/

The Act originally defined the term "commercial activity"
very broadly to mean "all activities of industry and trade,
including, but not limited to, the buying or selling of com-
modities and activities conducted for the purpose of facili-
tating such buying and selling." Id. $1532(1). By amend-
ment in 1976, the definition was revised so as expressly to
exclude "exhibition of commodities by museums or similar
cultural or historical organizations." Act of July 12,
1976, Pub. L. No. 94-359, $5. In the interim, however, the
Fish and Wildlife Service had by regulation interpreted the
words "industry or trade" to include only those activities
done for "gain or profit." 50 C.F.R. $17.3 (1975). The
legislative history of the 1976 amendment is clear that it
was not intended to override the Fish and Wildlife Service's
potentially broader administrative interpretation. See 122
Cong. Rec. H1066 (daily ed. Feb. 17, 1976) (Remarks of Rep.
Leggett).

16 U.S.C. $1538(a)(1) (Supp. IV 1974).
Id. $1538(c).

Id. $1538(a)(2). Because the law has never treated plants
as occupying the same conceptual status as wild animals, in
terms of their capability for private ownership, there would
appear to be a major constitutional difficulty in any gov-
ernmental effort to restrict their taking. See Chapter Two
supra.

16 U.S.C. $1533(d) (Supp. IV 1974).

Willful violations of the Act's prohibitions, permits issued under it, or most regulations that implement it, are punishable criminally by imprisonment of up to one year and fines of up to $20,000.99/ Willful violations of regulations pertaining to threatened species may be punished by maximum fines and prison terms of half those amounts.100/ Civil penalties of up to $10,000 may be assessed for knowing violations of the Act's prohibitions, permits issued under it, or most regulations that implement it.101/ Civil penalties of up to $5,000 may be assessed for knowing violations of regulations pertaining to threatened species.102/ If a violation is neither knowingly committed nor committed in the course of a commercial activity, a maximum civil penalty of up to $1,000 may be imposed.103/ Any person furnishing information which leads to a civil penalty or criminal conviction may be awarded up to one-half of the penalty or fine paid, up to $2,500.104/ Further sanctions which may be invoked include forfeiture of any wildlife products involved in any violation, 105/ and, for persons convicted of a criminal violation, immediate suspension or revocation of any "lease, license, permit, or other agreement authorizing the use of Federal lands."106/

To the foregoing prohibitions, the Act creates a number of important exceptions. The first of these exempts "any fish or wildlife held in captivity or in a

99/ Id. $1540(b).

100/ Id.

101/ Id. $1540 (a)(1).

102/ Id.

103/ Id.

104/ Id. $1540 (d).

105/ Id. $1540(e)(4).

For a case upholding the authority to

seize products derived in part form endangered species, see Delbay Pharmaceuticals, Inc. v. Dept. of Commerce, 409 F. Supp. 637 (D.D.C. 1976).

106/

16 U.S.C. $1540(b) (2) (Supp. IV 1974).

controlled environment" on December 28, 1973, provided that it was not held in the course of a commercial activity.107/ This limited exemption excluded the progeny of such animals born after the effective date of the Act. To provide a flexible means of dealing with such progeny, as well as other captive endangered wildlife, the Fish and Wildlife Service, relying upon the Act's broad definition of "species" to include discrete populations, has administratively created a category known as "captive, self-sustaining populations", which, if certain criteria are met, may be treated as threatened rather than endangered species.108/ In addition,

in 1976 Congress expanded the scope of this exemption to include sperm whale oil and finished scrimshaw products held within the United States on the effective date of the Act.109/ Although this amendment is limited solely to those two types of products, it will very likely serve as a precedent for future attempts to expand the scope of the exemption.110/

A second important exemption applies to certain Alaskan natives and non-native permanent residents of Alaskan native villages, who may take endangered and threatened species "primarily for subsistence purposes" and may sell the non-edible byproducts thereof in in

107/ Id. $1538(b). The words "in a controlled environment" have been interpreted so as to include within the scope of the exemption non-living wildlife or wildlife products, as well as living wildlife. See 50 C.F.R. $17.4 (1975). Curiously, however, the Act itself precludes any application of the exemption to plants.

109/

Act of July 12, 1976, Pub. L. No. 94-359, $2.

110/

In Delbay Pharmaceuticals, supra note 105, the court re-
jected a claim that the Act's failure to exempt all wild-
life lawfully held for any purpose at the time of the Act's
enactment violated the due process clause of the Fifth
Amendment by being completely arbitrary. The court ex-
pressly declined to rule on whether it constituted a taking
of private property without just compensation. 409 F.
Supp. at 645 n. 3.