the carrying out of an otherwise lawful activity," § 10(a)(1)(B), strongly suggests that Congress understood § 9 to prohibit indirect as well as deliberate takings. No one could seriously request an "incidental" take permit to avert § 9 liability for direct, deliberate action against a member of an endangered or threatened species. Pp. 696-701. (b) The Court of Appeals made three errors in finding that "harm" must refer to a direct application of force because the words around it do. First, the court's premise was flawed. Several of the words accompanying "harm" in § 3's definition of "take" refer to actions or effects that do not require direct applications of force. Second, to the extent that it read an intent or purpose requirement into the definition of "take," it ignored § 9's express provision that a "knowing" action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. Pp. 701-702. (c) The Act's inclusion of land acquisition authority, § 5, and a directive to federal agencies to avoid destruction or adverse modification of critical habitat, § 7, does not alter the conclusion reached in this case. Respondents' argument that the Government lacks any incentive to purchase land under § 5 when it can simply prohibit takings under § 9 ignores the practical considerations that purchasing habitat lands may be less expensive than pursuing criminal or civil penalties and that § 5 allows for protection of habitat before any endangered animal has been harmed, whereas § 9 cannot be enforced until a killing or injury has occurred. Section 7's directive applies only to the Federal Government, whereas § 9 applies to "any person." Pp. 702-704. (d) The conclusion reached here gains further support from the statute's legislative history. Pp. 704-708.
17 F. 3d 1463, reversed.
Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed a concurring opinion, post, p. 708. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 714.
Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Days, Assistant Attorney General Schiffer, Beth S. Brink-mann, Martin W. Matzen, Ellen J. Durkee, and Jean E. Williams.Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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