718
Scalia, J., dissenting
§ 1538(a)(1)(A); to possess, sell, deliver, carry, transport, or ship any taken species, § 1538(a)(1)(D); and to transport, sell, or offer to sell them in interstate or foreign commerce, §§ 1538(a)(1)(E), (F). The taking prohibition, in other words, is only part of the regulatory plan of § 1538(a)(1), which covers all the stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit. It is obvious that "take" in this sense—a term of art deeply embedded in the statutory and common law concerning wildlife—describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals).
The Act's definition of "take" does expand the word slightly (and not unusually), so as to make clear that it includes not just a completed taking, but the process of taking, and all of the acts that are customarily identified with or accompany that process ("to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect"); and so as to include attempts. § 1532(19). The tempting fallacy—which the Court commits with abandon, see ante, at 697-698, n. 10—is to assume that once defined, "take" loses any significance, and it is only the definition that matters. The Court treats the statute as though Congress had directly enacted the § 1532(19) definition as a self-executing prohibition, and had not enacted § 1538(a)(1)(B) at all. But § 1538(a)(1)(B) is there, and if the terms contained in the definitional section are susceptible of two readings, one of which comports with the standard meaning of "take" as used in application to wildlife, and one of which does not, an agency regulation that adopts the latter reading is necessarily unreasonable, for it reads the defined term "take"—the only operative term—out of the statute altogether.2
2 The Court suggests halfheartedly that "take" cannot refer to the taking of particular animals, because § 1538(a)(1)(B) prohibits "tak[ing] any [endangered] species." Ante, at 697, n. 10. The suggestion is halfhearted because that reading obviously contradicts the statutory intent. It would
Page: Index Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: October 4, 2007