WPCV 2BBcR Z33|["m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<;o;rfolWSGrfffZAeAe8.888888888888f>fffff]````J>J>J>J>rffffrrrrxffoffxffofff]]]]o````ffffffrrJ>J>J>J>lox;x;x;x;x;rrrrffWWWoSoSoSoSxGxGxGrrrrrrxfoZoZoZox;rWoSxGxfxfofrNe.}S1SSS```==`9}}`9(PPS88SSrr(P9ee\\w.e77\\\wwweeeCe.wR)EreewwwwIeenR\\\wwwxio\eEfRfIfRxe|W87y\r\rxWlRx\\]\ceIfIs`Wx\rriIe77\``rigewiiiiiiiiiiiiiiiiiiiIIIIIIIeeeeeeeeeeeeeeeeeeee777777777777\\\\\\\````````````rrrrrrrrrrrrrrrrrrrrxfx8xs8s\"X^FJa3SS}FSFFFFofSS}3o}SOJO}otaxSSSFSS*SSSSSSSSSSOo}}}}fOfOfOfO}}}}}}}oooo}}}}fOfOfOfOOOOOO}}ooottttaaaxxxOota}NF}JokkTKSS3aaAA}}3aSF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS2K#~c"c c"X^HJS<aa}FSFFFF}oaa}<a]XX}kaaSFSS*SSSSSSSSSS]o]o]o]o]o]o]o]o]XXXXX}}}}kkkX}kNF}J}}}\\VV<xx}SS}}<xVF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^)+9RRzx11IY)1))RRRRRRRRRR))YYYAljjjrjbrz>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQXgn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%ifQpQ=bp=:f=p\ifQQAp_\\U=o=o=3============f=iiiiiQQQQQK=K=K=K=p\\\\pppp~\ip\\~\\ziiiiQQQQpQQQQbbbbbbppK=K=K=K=pfz=z=z=z=z=pppp\\QQQzQzQzQzQ~A~A~Apppppp~\zUzUzUpz=pQzQ~A~\~\p\pNo3w\=QNNfffMDf=f=3GG\==\\pp%G=ooee3o<`A"m^!$/CCdb((HYYY66^E@@@@(JEEE66;,1N11@@@A9<16%7,7(7,A6C/A1>1P7A/:,A1E12156(7(>4E/A1H>E>9(6144>986@9999999999999999999(((((((666666666666666666661111111444444444444>>>>>>>>>>>>>>>>>>>>A7AA>E>1)o=3no P['C&P %e8.|e P['CP8SF> P['CPL:SHvX pTCL'l80lX pTCj DS?3s\  PCP DS??皝4  p(AC u![2*d[ P['CP !u![2*P[e xzCXr!Y1)LY P['CP ")o=3no P['C&P #)o=3PRoe xzC&X%UC%D4C P['CJP&F66 P['CP]I(!̤PI P['ChPu![2*d[ P['CP 2OcxGJ2mKoM"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KWWW]WP]d1C]Pqb]P]WLPbWvTTI2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkklWdPZH\I\I\IlWoY2(mWgRklWaMlWs\SCYG\IhSr\lWw_s\_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hRBQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( 5 EllipsisParagraph Ellipsis<;X` hp x (#%'0*,.8135@8: avoid. Ante, at 10. I thought we had renounced the  J vice of simplistically ... assum[ing] that whatever furthers the statute's primary objective must be the  J law. Rodriguez v. United States, 480 U.S. 522, 526  J (1987) (per curiam) (emphasis in original). Deduction from the broad purpose of a statute begs the question  JN if it is used to decide by what means (and hence to what  J& length) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job (or in this case, the quite simple one) of reading the whole text. The Act must do everything necessary to achieve its broad purpose is the slogan of  J^ the enthusiast, not the analytical tool of the arbiter.q%^ uB ԍ FTN    XgEpXFr  ddf < This portion of the Court's opinion, see ante, at 11, n. 12, dis uB} cusses and quotes a footnote in TVA v. Hill, 437 U.S. 153, 184!185, n. 30 (1978), in which we described the thencurrent version of the Secretary's regulation, and said that the habitat modification undertaken by the federal agency in the case would have violated the regulation. Even if we had said that the Secretary's regulation was  uB authorized by 1538, that would have been utter dictum, for the only provision at issue was 1536. See 437 U.S., at 193. But in"## fact we simply opined on the effect of the regulation while assuming its validity, just as courts always do with provisions of law whose validity is not at issue.q^ "  Ԍ Second, the Court maintains that the legislative history of the 1973 Act supports the Secretary's defini J tion. See ante, at 16!18. Even if legislative history were a legitimate and reliable tool of interpretation (which I shall assume in order to rebut the Court's claim); and even if it could appropriately be resorted to when the enacted text is as clear as this, but see  J Chicago v. Environmental Defense Fund, 511 U.S. ___, ___ (1994) (slip op., at 9!10); here it shows quite the opposite of what the Court says. I shall not pause to discuss the Court's reliance on such statements in the Committee Reports as   `  [t]ake' is defined ... in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife.' :  S. Rep. No. 93!307, p. 7 (1973)  J (quoted ante, at 17). This sort of empty flourish"to the effect that this statute means what it means all the way"counts for little even when enacted into the law  J0 itself. See Reves v. Ernst & Young, 507 U.S. ___, ___ (1993) (slip op., at 13!14).  Much of the Court's discussion of legislative history is devoted to two items: first, the Senate floor manager's introduction of an amendment that added the word harm to the definition of take, with the observation that (along with other amendments) it would  ! help to achieve the purposes of the bill ?! ; second, the relevant Committee's removal from the definition of a provision stating that take includes  k! the destruction, modification or curtailment of [the] habitat or range !  of fish and  Jx wildlife. See ante, at 17!18. The Court inflates the first and belittles the second, even though the second is on its face far more pertinent. But this elaborate inference from various preenactment actions and"    J inactions is quite unnecessary, since we have direct evidence of what those who brought the legislation to the floor thought it meant"evidence as solid as any ever to be found in legislative history, but which the  J` Court banishes to a footnote. See ante, at 18!19, n. 19.  Both the Senate and House floor managers of the bill  explained it in terms which leave no doubt that the problem of habitat destruction on private lands was to be solved principally by the land acquisition program of 1534, while 1538 solved a different problem altogether" the problem of takings. Senator Tunney stated:   JH BQ H C  , , (  Through [the] land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wildlife from further destruction.  J N N " Although most endangered species are threatened primarily by the destruction of their natural habitats, a significant portion of these animals are  J subject to predation by man for commercial, sport,  Js consumption, or other purposes. The provisions of [the bill] would prohibit the commerce in or the importation, exportation, or taking of endangered species .... 119 Cong. Rec. 25669 (1973) (emphasis added). )vBQ d  ( , , The House floor manager, Representative Sullivan, put the same thought in this way: BQ C  , , (  [T]he principal threat to animals stems from de J struction of their habitat.... [The bill] will meet this problem by providing funds for acquisition of  J critical habitat.... It will also enable the Department of Agriculture to cooperate with willing landowners who desire to assist in the protection of  J endangered species, but who are understandably  J unwilling to do so at excessive cost to themselves. Another hazard to endangered species arises from  J those who would capture or kill them for pleasure or  Jr profit. There is no way that Congress can make itr"   less pleasurable for a person to take an animal, but we can certainly make it less profitable for them to  J do so. Id., at 30162 (emphasis added).BQ d   ( , , Habitat modification and takings, in other words, were viewed as different problems, addressed by different provisions of the Act. The Court really has no explanation for these statements. All it can say is that [n]either statement even suggested that [the habitat acquisition funding provision in 1534] would be the Act's exclusive remedy for habitat modification by private landowners or that habitat modification by private landowners stood outside the ambit of [1538].  J Ante, at 18!19, n. 19. That is to say, the statements are not as bad as they might have been. Little in life is. They are, however, quite bad enough to destroy the Court's legislativehistory case, since they display the clear understanding (1) that habitat modification is separate from taking, and (2) that habitat destruction on private lands is to be remedied by public acquisition,  Jl and not by making particular unlucky landowners incur excessive cost to themselves. The Court points out triumphantly that they do not display the understanding (3) that the land acquisition program is the [Act's] only  J response to habitat modification. Ibid. Of course not,  J since that is not so (all public lands are subject to habitatmodification restrictions); but (1) and (2) are quite enough to exclude the Court's interpretation. They identify the land acquisition program as the Act's only  J response to habitat modification by private landowners,  J and thus do not in the least contradic[t], ibid., the fact  J that 1536 prohibits habitat modification by federal  J agencies.  Third, the Court seeks support from a provision which was added to the Act in 1982, the year after the Secretary promulgated the current regulation. The provision states:"  ԌBQ C  , , (  [T]he Secretary may permit, under such terms and conditions as he shall prescribe" <5 EllipsisXgEpX @d ).2.;.''C.KKL.! ;5 Ellipsis!X @d XgEp N N " any taking otherwise prohibited by section 1538(a)(1)(B) ... if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. 16 U.S.C. 1539(a)(1)(B). vBQ +d  ( , , This provision does not, of course, implicate our doctrine that reenactment of a statutory provision ratifies an extant judicial or administrative interpretation, for neither the taking prohibition in 1538(a)(1)(B) nor the  J definition in 1532(19) was reenacted. See Central Bank  J of Denver, N.A. v. First Interstate Bank of Denver,  J N.A., 511 U.S. ___, ___ (1994) (slip op., at 21). The Court claims, however, that the provision strongly suggests that Congress understood [1538(a)(1)(B)] to  J' prohibit indirect as well as deliberate takings. Ante, at 12. That would be a valid inference if habitat modification were the only substantial otherwise lawful activity that might incidentally and nonpurposefully cause a prohibited taking. Of course it is not. This provision applies to the many otherwise lawful takings that incidentally take a protected species"as when fishing for unprotected salmon also takes an endangered species  J of salmon, see Pacific Northwest Generating Cooperative  J v. Brown, 38 F.3d 1058, 1067 (CA9 1994). Congress has referred to such incidental takings in other statutes as well"for example, a statute referring to the incidental taking of ... sea turtles in the course of ... harvesting [shrimp] and to the rate of incidental taking of sea turtles by United States vessels in the course of such harvesting, 103 Stat. 1038 609(b)(2), note following 16 U.S.C. 1537 (1988 ed., Supp. V); and a statute referring to the incidental taking of marine mammals in the course of commercial fishing operations, 108 Stat. 546, 118(a). The Court shows/"   that it misunderstands the question when it says that [n]o one could seriously request an `incidental' take permit to avert ... liability for direct, deliberate action  J against a member of an endangered or threatened  J` species. Ante, at 12!13 (emphasis added). That is not  J8 an incidental take at all.8 uB ԍ  ! The statutory requirement of a conservation plan is as consistent  uBW with this construction as with the Court's. See ante, at 12, and n. 14. The commercial fisherman who is in danger of incidentally sweeping up protected fish in his nets can quite reasonably be required to minimize and mitigate the impact of his activity. 16 U.S.C. 1539(a)(2)(A).   This is enough to show, in my view, that the 1982 permit provision does not support the regulation. I must acknowledge that the Senate Committee Report on this provision, and the House Conference Committee Report, clearly contemplate that it will enable the Secretary to permit environmental modification. See S. Rep. No. 97!418, p. 10 (1982); H.R. Conf. Rep. No.  J 97!835, pp. 30!32 (1982). But the text of the amendment cannot possibly bear that asserted meaning, when placed within the context of an Act that must be interpreted (as we have seen) not to prohibit private environmental modification. The neutral language of the amendment cannot possibly alter that interpretation, nor can its legislative history be summoned forth to contradict, rather than clarify, what is in its totality an  J unambiguous statutory text. See Chicago v. Environ J mental Defense Fund, 511 U.S. ___ (1994). There is little fear, of course, that giving no effect to the relevant portions of the Committee Reports will frustrate the reallife expectations of a majority of the Members of Congress. If they read and relied on such tedious detail on such an obscure point (it was not, after all, presented as a revision of the statute's prohibitory scope, but as a discretionarywaiver provision) the Republic would be in grave peril.P#"  Ԍ Fourth and lastly, the Court seeks to avoid the evident shortcomings of the regulation on the ground that the respondents are challenging it on its face rather  J than as applied. See ante, at 11; see also ante, at 1  J` (O'Connor, J., concurring). The Court seems to say  J8 that even if the regulation dispenses with the foreseeability of harm that it acknowledges the statute to require, that does not matter because this is a facial  J challenge: so long as habitat modification that would foreseeably cause harm is prohibited by the statute, the regulation must be sustained. Presumably it would apply the same reasoning to all the other defects of the regulation: the regulation's failure to require injury to particular animals survives the present challenge,  J because at least some environmental modifications kill particular animals. This evisceration of the facial challenge is unprecedented. It is one thing to say that a facial challenge to a regulation that omits statutory  J0 element x must be rejected if there is any set of facts on  J which the statute does not require x. It is something quite different"and unlike any doctrine of facial challenge I have ever encountered"to say that the challenge must be rejected if the regulation could be  Jh applied to a state of facts in which element x happens  J@ to be present. On this analysis, the only regulation  J susceptible to facial attack is one that not only is invalid  J in all its applications, but also does not sweep up any  J person who could have been held liable under a proper application of the statute. That is not the law. Suppose a statute that prohibits premeditated killing of a human being, and an implementing regulation that prohibits killing a human being. A facial challenge to the regulation would not be rejected on the ground that,  J after all, it could be applied to a killing that happened  J to be premeditated. It could not be applied to such a killing, because it does not require the factfinder to find premeditation, as the statute requires. In other words,`"   to simplify its task the Court today confuses lawful application of the challenged regulation with lawful  J application of a different regulation, i.e., one requiring the various elements of liability that this regulation omits.  9H1 d dy7III؃  t2  In response to the points made in this dissent, the Court's opinion stresses two points, neither of which is supported by the regulation, and so cannot validly be used to uphold it. First, the Court and the concurrence suggest that the regulation should be read to contain a requirement of proximate causation or foreseeability,  J principally because the statute does"and [n]othing in the regulation purports to weaken those requirements [of  Jf the statute]. See ante, at 8, n. 9; 11!12, n. 13; see also  J> ante, at 4!6 (O'Connor, J., concurring). I quite agree that the statute contains such a limitation, because the verbs of purpose in 1538(a)(1)(B) denote action directed  J at animals. But the Court has rejected that reading. The critical premise on which it has upheld the regulation is that, despite the weight of the other words in 1538(a)(1)(B), the statutory term `harm' encompasses  J& indirect as well as direct injuries, ante, at 9. See also  J ante, at 9!10, n. 11 (describing the sense of indirect  J causation that `harm' adds to the statute); ante, at 14 (stating that the Secretary permissibly interprets  u ! `harm'  ! to include indirectly injuring endangered animals). Consequently, unless there is some strange category of causation that is indirect and yet also proximate, the Court has already rejected its own basis for finding a proximatecause limitation in the regulation.  J In fact proximate causation simply means direct  J causation. See, e.g., Black's Law Dictionary 1103 (5th ed. 1979) (defining [p]roximate as Immediate; nearest;  JF direct) (emphasis added); Webster's New International Dictionary of the English Language 1995 (2d ed. 1949)"    J ( proximate cause. A cause which directly, or with no mediate agency, produces an effect) (emphasis added).  The only other reason given for finding a proximatecause limitation in the regulation is that by use of the word `actually,' the regulation clearly rejects speculative  J8 or conjectural effects, and thus itself invokes principles  J of proximate causation. Ante, at 5 (O'Connor, J.,  J concurring); see also ante, at 11!12, n. 13 (majority  J opinion). Non sequitur, of course. That the injury must be actual as opposed to potential simply says nothing at all about the length or foreseeability of the causal chain between the habitat modification and the actual injury. It is thus true and irrelevant that the Secretary did not need to include `actually' to connote `but for'  J causation, ante, at 11!12, n. 13; actually defines the  J requisite injury, not the requisite causality.  The regulation says (it is worth repeating) that harm means (1) an act which (2) actually kills or injures wildlife. If that does not dispense with a proximatecause requirement, I do not know what language would. And changing the regulation by judicial invention, even to achieve compliance with the statute, is not permissible. Perhaps the agency itself would prefer to achieve compliance in some other fashion. We defer to reasonable agency interpretations of ambiguous statutes precisely in order that agencies, rather than courts, may exercise policymaking discretion in the interstices of  J statutes. See Chevron, 467 U.S., at 843!845. Just as courts may not exercise an agency's power to adjudicate, and so may not affirm an agency order on discretionary  JP grounds the agency has not advanced, see SEC v.  J( Chenery Corp., 318 U.S. 80 (1943), so also this Court may not exercise the Secretary's power to regulate, and so may not uphold a regulation by adding to it even the most reasonable of elements it does not contain.  The second point the Court stresses in its response seems to me a belated mending of its hold. It appar`"  Ԯ J ently concedes that the statute requires injury to par J ticular animals rather than merely to populations of ani J mals. See ante, at 11!12, n. 13; id., at 7, 9 (referring  J to killing or injuring members of [listed] species (em phasis added)). The Court then rejects my contention that the regulation ignores this requirement, since, it says, every term in the regulation's definition of `harm' is subservient to the phrase `an act which actually kills or in J jures wildlife.' !  Id., at 11!12, n. 13. As I have pointed  J out, see supra, at 3, this reading is incompatible with the regulation's specification of impairment of breeding as  JH one of the modes of kill[ing] or injur[ing] wildlife. G  MH  uB ԍ  !  Justice O'Connor supposes that an impairment of breeding intrinsically injures an animal because [t]o make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete.  uB Ante, at 2 (concurring opinion). This imaginative construction does achieve the result of extending impairment of breeding to individual animals; but only at the expense of also expanding injury to include  uB elements beyond physical harm to individual animals. For surely the only harm to the individual animal from impairment of that essential function is not the failure of issue (which harms only the issue), but the  uB psychic harm of perceiving that it will leave this world with no issue (assuming, of course, that the animal in question, perhaps an endangered species of slug, is capable of such painful sentiments). If it  uB includes that psychic harm, then why not the psychic harm of not being able to frolic about"so that the draining of a pond used for an endangered animal's recreation, but in no way essential to its survival, would be prohibited by the Act? That the concurrence is driven to such a dubious redoubt is an argument for, not against, the proposition that injury in the regulation includes injury to populations of animals. Even more so with the concurrence's alternative explanation: that impairment of breeding refers to nothing more than concrete injuries inflicted by the habitat modification on the animal who does the breed uBj ing, such as physical complications [suffered] during gestation, ante, at 3. Quite obviously, if impairment of breeding meant such physical harm to an individual animal, it would not have had to be mentioned.  The concurrence entangles itself in a dilemma while attempting to explain the Secretary's commentary to the harm regulation, which statedF"## that harm is not limited to direct physical injury to an individual member of the wildlife species, 46 Fed. Reg. 54748 (1981). The concurrence denies that this means that the regulation does not require injury to particular animals, because one could just as easily emphasize  uBl the word `direct' in this sentence as the word `individual.' !  Ante, at 3. One could; but if the concurrence does, it thereby refutes its separate attempt to exclude indirect causation from the regulation's coverage, see  uB ante, at 4!6. The regulation, after emerging from the concurrence's  uBH analysis, has acquired both a proximatecause limitation and a particularanimals limitation"precisely the one meaning that the Secretary's quoted declaration will not allow, whichever part of it is emphasized. H m "  Ԍ  But since the Court is reading the regulation and the statute incorrectly in other respects, it may as well introduce this novelty as well"law ! la carte. As I understand the regulation that the Court has created and held consistent with the statute that it has also created, habitat modification can constitute a taking, but only if it results in the killing or harming of  J individual animals, and only if that consequence is the direct result of the modification. This means that the destruction of privately owned habitat that is essential,  Jp not for the feeding or nesting, but for the breeding, of butterflies, would not violate the Act, since it would not harm or kill any living butterfly. I, too, think it would not violate the Act"not for the utterly unsupported reason that habitat modifications fall outside the regulation if they happen not to kill or injure a living animal, but for the textual reason that only action directed at living animals constitutes a take. 3 Stars 3*** 3 Stars The Endangered Species Act is a carefully considered piece of legislation that forbids all persons to hunt or harm endangered animals, but places upon the public at large, rather than upon fortuitously accountable individual landowners, the cost of preserving the habitat of endangered species. There is neither textual supportm "   for, nor even evidence of congressional consideration of, the radically different disposition contained in the regulation that the Court sustains. For these reasons, I respectfully dissent.