Memo on Legal Issue

This memo concerns the effect of the Endangered Species Act upon John Winesap's use of his property. Specifically, the memo will discuss whether Mr. Winesap may be forced to suspend the use of his property for the cultivation of apple orchids because of the existence of Least Bell Vireos on his property.

John Winesap has owned a piece of property since 1984, throughout which time he operated a small apple orchard on the property. This property is located next to the banks of the Santa Clara River, whose creek beds are home to the Least Bell Vireo bird. The Least Bell Vireo has been on the federal endangered species list since 1986. This bird builds its nests from plants located on and near Mr. Winesap's property. However, it has been discovered that the apple orchard activities are softening this plant, adversely affecting the ability of the bird to build its nests. As a result, the Department of the Interior has notified Mr. Winesap that his apple orchard activities are threatening the habitat of the bird.

Upon consulting with a biologist, Winesap discovered several things. First, there are at least five pairs of the bird living on his property, nesting in trees along the bank of the river. Second, there is no evidence of any dead birds on his property and all five pairs found appeared to be healthy. Third, since the bird was placed on the endangered species list in 1986, its population

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en by the Regulations. The Court noted that Webster's Dictionary defined "harm" as "to cause hurt or damage to; injure." The Court said that in the context of the Act, this definition "naturally" encompasses modification of habitat which results in death or injury to members of an endangered species. 115 S. Ct. at 2412-13. The Court also rejected the plaintiff's argument that "harm" should only include direct applications of force against protected species. The Court pointed out that the dictionary definition of "harm" does not preclude indirect actions. The Court added that "harm" would have no meaning that would not duplicate the meaning of the other words in the definition of "take" if it did not include indirect injuries. 115 S. Ct. at 2413. The Supreme Court's acceptance of the interpretation of "harm" given by the Regulations has been reflected in lower court decisions. In Marbled Murrelet v. Pacific Lumber Company, 880 F. Supp. 1343 (N.D. Cal. 1995), the District Court for the Northern District of California accepted the definition provided by the Regulations without argument. In that case, an action was brought against a lumber company on behalf of an endangered bird because the company planned to harvest trees
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Some common words found in the essay are:
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Approximate Word count = 1967
Approximate Pages = 8 (250 words per page)

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