Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 15 (1995)

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Cite as: 515 U. S. 687 (1995)

Opinion of the Court

permit to avert 9 liability for direct, deliberate action against a member of an endangered or threatened species, but respondents would read "harm" so narrowly that the permit procedure would have little more than that absurd purpose. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS, 514 U. S. 386, 397 (1995). Congress' addition of the 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them.

The Court of Appeals made three errors in asserting that "harm" must refer to a direct application of force because the words around it do.15 First, the court's premise was flawed. Several of the words that accompany "harm" in the 3 definition of "take," especially "harass," "pursue," "wound," and "kill," refer to actions or effects that do not require direct applications of force. Second, to the extent the court read a requirement of intent or purpose into the words used to define "take," it ignored 11's express provision that a "know-servation plan," which must describe an alternative to a known, but undesired, habitat modification.

15 The dissent makes no effort to defend the Court of Appeals' reading of the statutory definition as requiring a direct application of force. Instead, it tries to impose on 9 a limitation of liability to "affirmative conduct intentionally directed against a particular animal or animals." Post, at 720. Under the dissent's interpretation of the Act, a developer could drain a pond, knowing that the act would extinguish an endangered species of turtles, without even proposing a conservation plan or applying for a permit under 10(a)(1)(B); unless the developer was motivated by a desire "to get at a turtle," post, at 721, no statutory taking could occur. Because such conduct would not constitute a taking at common law, the dissent would shield it from 9 liability, even though the words "kill" and "harm" in the statutory definition could apply to such deliberate conduct. We cannot accept that limitation. In any event, our reasons for rejecting the Court of Appeals' interpretation apply as well to the dissent's novel construction.

701

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