Greater Protection for Endangered Species: The Sweet Home Case

Abstract

Increasingly, land developers are facing a new constraint on the right to develop. In areas targeted for development, large reserves may be required to protect threatened and endangered species listed by states or the federal government. The federal Endangered Species Act (ESA), 16 U.S.C. § 1531-1544, applies both to public agencies and their permitees and to private parties. Section 9 of the ESA prohibits any party from taking a listed threatened or endangered species. “Take” is defined in the statute to include, inter alia, “to harass, harm, pursue, wound, or kill.” See 16 U.S.C. Q 1532(19). As a result, the ESA applies to all private land development in areas where endangered species exist or may exist. The protected habitat is not, as many land developers have argued, limited to habitat presently “occupied” by the species. Any clearing activity or habitat alteration in areas suitable for a listed threatened or endangered species is a potential “take.”