Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 14 (1995)

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700

BABBITT v. SWEET HOME CHAPTER, COMMUNITIES FOR GREAT ORE.

Opinion of the Court

pond, would actually result in the extinction of a listed species by destroying its habitat. Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of "harm" is reasonable.13

Third, the fact that Congress in 1982 authorized the Secretary to issue permits for takings that 9(a)(1)(B) would otherwise prohibit, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," 16 U. S. C. 1539(a)(1)(B), strongly suggests that Congress understood 9(a)(1)(B) to prohibit indirect as well as deliberate takings. Cf. NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275 (1974). The permit process requires the applicant to prepare a "conservation plan" that specifies how he intends to "minimize and mitigate" the "impact" of his activity on endangered and threatened species, 16 U. S. C. 1539(a)(2)(A), making clear that Congress had in mind foreseeable rather than merely accidental effects on listed species.14 No one could seriously request an "incidental" take

13 The dissent incorrectly asserts that the Secretary's regulation (1) "dispenses with the foreseeability of harm" and (2) "fail[s] to require injury to particular animals," post, at 731. As to the first assertion, the regulation merely implements the statute, and it is therefore subject to the statute's "knowingly violates" language, see 16 U. S. C. 1540(a)(1), (b)(1), and ordinary requirements of proximate causation and foreseeability. See n. 9, supra. Nothing in the regulation purports to weaken those requirements. To the contrary, the word "actually" in the regulation should be construed to limit the liability about which the dissent appears most concerned, liability under the statute's "otherwise violates" provision. See n. 9, supra; post, at 721-722, 732-733. The Secretary did not need to include "actually" to connote "but for" causation, which the other words in the definition obviously require. As to the dissent's second assertion, every term in the regulation's definition of "harm" is subservient to the phrase "an act which actually kills or injures wildlife."

14 The dissent acknowledges the legislative history's clear indication that the drafters of the 1982 amendment had habitat modification in mind, see post, at 730, but argues that the text of the amendment requires a contrary conclusion. This argument overlooks the statute's requirement of a "con-

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