dissenting.
I respectfully dissent. The Secretary’s authority to utilize regulated taking of threatened species as a method of conservation is not limited to the “extraordinary case where population pressures cannot be otherwise relieved.” 16 U.S.C. § 1532(3) (1982). Instead, the Secretary’s authority in this respect is limited only by the necessity that, if regulated taking is to be utilized, it must further the effort to bring threatened species “to the point at which the measures provided pursuant to * * * [the Endangered Species Act] * * * are no longer necessary.” Id.
As applied to this case, the Secretary’s authority to utilize regulated taking of timber wolves is limited only by the requirement that such method aid the effort of bringing the wolves to the point at which they can survive and propagate without the need of the protections of the Endangered Species Act. The fact that timber wolves do not exceed the population limits of its ecosystem is not determinative. Since the district court failed to make a finding that the sport trapping regulation at issue either furthered, or did not further, the effort to conserve the timber wolf, I would remand the case for a finding on this issue.
My construction of the Endangered Species Act is compelled by the plain language and legislative history of the Act, as well as the proper fulfillment of the purposes Congress sought to achieve when it promulgated the Act.
The Secretary’s authority to regulate threatened species is provided for in 16 U.S.C. § 1533(d) (1982), which provides that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” Id. (Emphasis added). The term *621“conservation” is specifically defined as follows:
(3) The terms “conserve”, “conserving”, and “conservation” mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
16 U.S.C. § 1532(3) (1982) (emphasis added).
The plain language of the statute refuses to limit the methods available to the Secretary. Yet, the majority opinion concludes that “section 1532 * * * limits the Secretary’s discretion as to threatened species” to the case where such species exceeds the population limits of its ecosystem. Ante at 614 (emphasis added). This approach entirely ignores the “but are not limited to” language of section 1532(3).
Even the legislative history relied upon by the majority opinion supports a conclusion that Congress did not intend to adopt the approach taken by the trial court. The legislative history cited by the majority states that: “In extreme circumstances, as where a given species exceeds the carrying capacity of its particular ecosystem and where this pressure can be relieved in no other feasible way, this ‘conservation’ might include authority for carefully controlled taking of surplus members of the species.” Ante at 615 (emphasis added). See also ante at 617. The “as where” language clearly indicates that Congress intended that the existence of population pressures was only one example of when regulated taking might serve a conservation purpose.
Finally, the purposes Congress sought to achieve when it promulgated the Endangered Species Act are not furthered by limiting the Secretary’s, authority to utilize regulated taking of threatened species solely to the “case where population pressures cannot be otherwise relieved.” The clear purpose of the Endangered Species Act was to further conservation efforts. Congress did not intend to foreclose the use of methods which might achieve this purpose.
My conclusion in this case is buttressed by the following example: Several members of a pack of wolves became afflicted with a disease which is highly contagious between members of the species and which leaves visible signs of its presence. The Secretary seeks to utilize a regulated taking of the diseased animals to prevent the spread of the disease. However, a regulated taking of diseased animals which might infect an entire threatened species is not expressly set forth as a method of conservation in section 1532(3). Nor would such a circumstance constitute a “case where population pressures cannot be otherwise relieved.” Yet, an appropriately defined regulated taking would clearly constitute a useful method of conservation in such a case. The majority’s approach, however, would foreclose the use of regulated taking in such a case.
The majority notes that my concerns with the imposition of undue restrictions on available conservation methods are allayed by the provisions of 16 U.S.C. § 1539(a)(1)(A). Ante at 614, n. 8. This provision grants the Secretary the authority to permit “any act * * * to enhance the propagation or survival of the affected species.” If this provision were properly applied by the majority, my concerns in this case would indeed be allayed, since § 1539(a)(1)(A) would permit the use of a public sport season as a conservation method if such method would enhance the propagation or survival of the timber wolf. Again, however, the majority reads a limitation on the use of conservation methods into a provision where no limitation is either written or intended.
*622In sum, I would remand the case for a determination as to whether the Secretary’s regulations further a conservation purpose. If it were established that this purpose could be furthered by letting the public kill wolves for sport and sell the pelts, then this method would not be foreclosed by the Endangered Species Act. In fact, the Endangered Species Act might actually require that this method be used The majority s approach is overbroad and thus detrimental to possible future beneficial uses of regulated taking as a method of conservation. Accordingly, I must dis-senk
T ,, , , , , ,. „ ,. I would also reduce substantially or elim- . , ,, ,, „ j ", , ,, mate the attorneys fees awarded by the district court. Even if the trial court was completely affirmed the 30 percent additur was clearly wrong.
APPENDIX A
16 U.S.C. § 1531(c)(1):
It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.
16 U S C § 1532(3)- ’
,, „ ,, . „ The terms “conserve , conserving , , ,, ,. „ ’ . ® and conservation mean to use and the , , ,. , use of all methods and procedures which ... , , are necessary to bring any endangered ,, , , ...... species or threatened species to the point : , . , ,, . , , at which the measures provided pursuant i to this chapter are no longer necessary. c, , , j • i y Such methods and procedures include, , , . i- ., , , n ,. ... but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
16 U.S.C. § 1532(6):
The term “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.
16 U S C § 1532(19)-
means to harass, harmj hunt, shoot, wound, kill, capture, or collect, or to attempt to in guch conduct
U.S.C. § 1532(20):
The term “threatened species” means any species which is likely to become an endangered species within the foreseea- ,. . f ,, , ,, ble future throughout all or a significant b porfclon of lts range'
16 U.S.C. § 1533(d):
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife, or section 1538(a)(2) of this title, in the case of plants, with respect to endangered . , ., , ... , , ,, species: except that with respect to the , „• taking of resident species of fish or wild- „ , . life, such regulations shall apply m any ’ , . , , . , . ^ J State which has entered into a coopera- ,. , , five agreement pursuant to section i™,-/, „ . ..., . , , 1535(c) of this title only to the extent ,, , , , r that such regulations have also been , , , , adopted by such State, r J
16 U.S.C. § 1538(a)(1)(B):
Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to—
la^e any such species within the United States or the territorial sea of the United States,
16 U.S.C. § 1539(a)(1)(A):
*623The Secretary may permit, under such terms and conditions as he shall prescribe—
any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j) of this section.