ALTERATION OF WILDLIFE HABITAT AS A PROHIBITED TAKING UNDER THE ENDANGERED SPECIES ACT

Steven G. Davison

This Article analyzes the Fish and Wildlife Service's interpretation of "take" under the Endangered Species Act (ESA) and determines whether modification of a habitat constitutes a taking under the Act. The Article explores conflicting decisions between the Ninth Circuit and the District of Columbia Court of Appeals, and suggests that the United States Supreme Court should resolve the conflict by holding that the Fish and Wildlife Service regulation defining harm is not facially void for vagueness and is a reasonable agency interpretation of an ambiguous provision of the ESA. Thus, modification of a habitat should be included within the definition of "take" under the ESA.

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