Cite as: 515 U. S. 687 (1995)
O'Connor, J., concurring
that the Fish and Wildlife Service states at one point that "harm" is not limited to "direct physical injury to an individual member of the wildlife species," see 46 Fed. Reg. 54748 (1981). But one could just as easily emphasize the word "direct" in this sentence as the word "individual." * Elsewhere in the commentary, the Service makes clear that "section 9's threshold does focus on individual members of a protected species." Id., at 54749. Moreover, the Service says that the regulation has no application to speculative harm, explaining that its insertion of the word "actually" was intended "to bulwark the need for proven injury to a species due to a party's actions." Ibid.; see also ibid. (approving language that "[h]arm covers actions . . . which actually (as opposed to potentially), cause injury"). That a protected animal could have eaten the leaves of a fallen tree or could, perhaps, have fruitfully multiplied in its branches is not sufficient under the regulation. Instead, as the commentary reflects, the regulation requires demonstrable effect (i. e., actual injury or death) on actual, individual members of the protected species.
By the dissent's reckoning, the regulation at issue here, in conjunction with 16 U. S. C. § 1540(a)(1), imposes liability for any habitat-modifying conduct that ultimately results in the death of a protected animal, "regardless of whether that result is intended or even foreseeable, and no matter how long
*Justice Scalia suggests that, if the word "direct" merits emphasis in this sentence, then the sentence should be read as an effort to negate principles of proximate causation. See post, at 734-735, n. 5. As this case itself demonstrates, however, the word "direct" is susceptible of many meanings. The Court of Appeals, for example, used "direct" to suggest an element of purposefulness. See 17 F. 3d 1463, 1465 (CADC 1994). So, occasionally, does the dissent. See post, at 720 (describing "affirmative acts . . . which are directed immediately and intentionally against a particular animal") (emphasis added). It is not hard to imagine conduct that, while "indirect" (i. e., nonpurposeful), proximately causes actual death or injury to individual protected animals, cf. post, at 732; indeed, principles of proximate cause routinely apply in the negligence and strict liability contexts.
711
Page: Index Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: October 4, 2007