Vanderbilt Law Review

Article Title

Beyond "Harm": Abandoning the Actual Injury Standard for Certain Prohibited Takings Under the Endangered Species Act by Giving Independent Meaning to "Harassment"


As new technology and a desire for progress propel us into the next millennium, a corresponding daily depletion of national and worldwide wildlife resources perpetuates the frightening biological problem of species extinction, resulting in "irreplaceable losses" to medicine, science, ecology, and aesthetics. Every species is a part of the intricate and complicated ecosystem; its stability depends on the continued existence of each of its components. Each black-footed ferret, blue whale, and red wolf contributes to the delicate "balance of nature," a state of ecology that must be maintained for humans to survive. Indeed, scientists have derived much-needed knowledge from other species: how to increase worldwide food production, cures for disease, and a deeper understanding of how the human body functions. Geneticists and biologists have just begun to uncover the vast resources stored in wildlife that can enrich human life. With each species extinction comes a lost opportunity-one that cannot be replaced or artificially reproduced. Thus, undertaking the protection and revival of endangered species is more than an exercise for animal lovers and aesthetes-it is an effort demanded by the human instinct of self-preservation.

The Endangered Species Act of 1973 ("ESA" or "Act"), the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation," contains a variety of protections designed to save from extinction those species that the Secretary of the Interior ("Secretary") designates as threatened or endangered. The Act seeks to preserve at-risk species through three basic mechanisms: (1) a federal land acquisition program;' (2) the imposition of strict obligations on federal agencies to avoid adverse effects on endangered species; and (3) a prohibition on the taking of endangered species by anybody. The Act provides that "[t]he term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Since the ESA's enactment twenty-five years ago, "difficult questions of proximity and degree'- l have arisen regarding the definition of "take," particularly in determining the scope of the term "harm."' While "harass" is similarly "vague and expansive,"' it has not enjoyed such heated debate.

The first purpose of this Note is to orient the term "harm" within the general dialogue about the scope of ESA-prohibited takings. Accordingly, after a brief overview of endangered species which we are [before Congress] striving to save will not survive, and our own 'harvest" will surely be at hand.