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Another Take on “Take”: The Endangered Species Act Section 9 Prohibition

Steven P. Quarles, Sarah C. Wells, Wallace P. Erickson, Endangered Species Act: Current and Emerging Issues Affecting Resource Development

After over forty years of experience, challenges, and change, the Endangered Species Act of 1973 (“ESA” or “Act”) remains among the most powerful and controversial environmental laws. The ESA aspired to provide a comprehensive approach to the invariably complex environmental problem of species extinction, and at the heart of this endeavor is the section 9 prohibition against “take” of species that are in danger of extinction. The Act declared as its purpose “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species.”2 By its leading position in the statement of purpose, ecosystem conservation may appear to be the paramount function of the ESA, but it is not accorded such prominence in the Act's substantive provisions. Instead, the species-focused “take” prohibition is the primal source of the ESA's strength and also the fundamental source of the controversy surrounding the Act's expansive reach. While the ESA was popular at its inception and easily passed through Congress,3 its force and potential impacts only became widely appreciated with the Supreme Court's decision in the case of Tennessee Valley Authority v. Hill.4 The Supreme Court's unequivocal interpretation of the strength of the ESA articulated in that case laid