The Taking Prohibition in Section 9 of the Endangered Species Act: Contradictions, Ugly Ducklings, and Conservation of Species

Abstract

The "take" prohibition in Section 9 of the Endangered Species Act should be one of the most important provisions in the Act. Section 9 prohibits most injury to protected species. Unlike most provisions of the Act, section 9 applies to private actions on private land. This article evaluates case law over the past 15 years and discusses the tensions within the Act that have prevented section 9 from assuming a more prominent role in Endangered Species Act jurisprudence. The Article suggests that two sources, embedded in the language and history of the Act, are principle causes of the current confusion over the application of section 9. First, section 9's focus on individual species members appears to conflict with the Endangered Species Act's general focus on the conservation of species. Second, the direct, judicially enforceable, prohibitions in section 9 are fundamentally different from other significant provisions of the Act, which focus on agency decision making and judicial review of agency decision in the administrative law tradition. The Authors argue that for section 9 to assume its rightful place, courts must consider injury to both individual species members and the population in which they are a part. The Authors conclude that the solution to the current arrested development of section 9 is a coherent application of the provision in accordance with the purpose of the Endangered Species Act, conservation of species.