Cite as: 515 U. S. 687 (1995)
Scalia, J., dissenting
I
The Endangered Species Act of 1973 (Act), 16 U. S. C. § 1531 et seq. (1988 ed. and Supp. V), provides that "it is unlawful for any person subject to the jurisdiction of the United States to—. . . take any [protected] species within the United States." § 1538(a)(1)(B). The term "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." § 1532(19) (emphasis added). The challenged regulation defines "harm" thus:
"Harm in the definition of 'take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 CFR § 17.3 (1994).
In my view petitioners must lose—the regulation must fall— even under the test of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984), so I shall assume that the Court is correct to apply Chevron. See ante, at 703-704, and n. 18.
The regulation has three features which, for reasons I shall discuss at length below, do not comport with the statute. First, it interprets the statute to prohibit habitat modification that is no more than the cause-in-fact of death or injury to wildlife. Any "significant habitat modification" that in fact produces that result by "impairing essential behavioral patterns" is made unlawful, regardless of whether that result is intended or even foreseeable, and no matter how long the chain of causality between modification and injury. See, e. g., Palila v. Hawaii Dept. of Land and Natural Resources, 852 F. 2d 1106, 1108-1109 (CA9 1988) (Palila II) (sheep grazing constituted "taking" of palila birds, since although sheep do not destroy full-grown mamane trees, they do destroy mamane seedlings, which will not grow to
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