dissenting:
As we have observed, “some will find ambiguity even in a ‘No Smoking’ sign.” International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C.Cir.1987). In the present case the Fish and Wildlife Service has established that it would not only find such ambiguity, but would deem a congressional authorization for the erection of “No Smoking” signs to authorize the adoption of regulations against chewing and spitting.
As Chief Judge Mikva notes, this case is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That decision mandates a two-step analysis. At the first step “we inquire into whether Congress has directly spoken to the precise question at issue. If we can come to the unmistakable conclusion that Congress had an intention on the precise question at issue, our inquiry ends there.” Nuclear Info. Resource Serv. v. Nuclear Regulatory Comm’n, 969 F.2d 1169, 1173 (1992) (en banc) (citations and internal quotation marks omitted). At the second step “if the statute ... is silent or ambiguous with respect to the specific issue before us, ... we defer to the agency’s interpretation of the statute if it is reasonable and consistent with the statute’s purpose.” Id. (citations and internal quotation *12marks omitted). While I am willing to concede the possibility that some ambiguity may remain in the unusually specific recitation by Congress of its intent in defining the term “take,” I cannot cram the agency’s huge regulatory definition into the tiny crack of ambiguity Congress left.
As a colleague of ours has observed, “the second prong of the Chevron inquiry, whether an agency’s interpretation of an ambiguous statutory provision is reasonable, is also not devoid of content.” National Ass’n for Better Broadcasting v. FCC, 849 F.2d 665, 671 n. 3 (D.C.Cir.1988) (Wald, C.J., dissenting). In the present case, I see no reasonable way that the term “take” can be defined to include “significant habitat modification or degradation” as it is defined in 50 C.F.R. § 17.3. I have in my time seen a great many farmers modifying habitat. They modify by plowing, by tilling, by clearing, and in a thousand other ways. At no point when I have seen a farmer so engaged has it occurred to me that he is taking game. Nor do I think it would occur to anyone else that he was taking wildlife. He may be doing something harmful to wildlife, but he is not “taking” it.
In my view, the fact that the farmer may be indirectly harming wildlife, and that the statutory definition includes “harm” helps the agency’s cause but little. To analogize again to the smoking proposition, if Congress authorized the erection of “No Smoking” signs in public buildings and thereafter defined smoking to “include lighting, burning, puffing, inhaling, and otherwise harmfully employing the noxious nicotine-bearing tobacco products,” some zealous bureau might well attempt to define smoking to include chewing and spitting under the rubric of the “harmful use” in Congress’s definition of smoking. Perhaps some might think that reference to harm would cause the concept of smoking to include chewing. I do not think those creative regulators would be thinking reasonably if they should do so, nor do I think the regulators act reasonably in the present case.
As my colleague observes, there is an ancient “principle of statutory construction known as noscitur a sociis, a general word in a list should be interpreted narrowly ‘to avoid the giving of unintended breadth to the Acts of Congress.’ ” Mikva Op. at 10, quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). In the present statute, all the other terms among which “harm” finds itself keeping company relate to an act which a specifically acting human does to a specific individual representative of a wildlife species. In fact, they are the sorts of things an individual human commonly does when he intends to “take” an animal. Otherwise put, if I were intent on taking a rabbit, a squirrel, or a deer, as the term “take” is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, or collect”1 one of the target species. 16 U.S.C. § 1532(19). If I succeeded in that endeavor, I would certainly have “taken” the beast. If I failed, I would at least have “attempt[ed] to engage in ... such conduct.” Id.
All this falls neatly within a reasonable construction of “take,” just as puffing a pipe falls neatly within the definition of smoking, and I would not dare to do such in front of a “No Smoking” sign. However, I would think it most unreasonable if a regulator told me that I could not chew nicotine gum in front of the same sign because the agency had decided that it was harmful and therefore constituted smoking. It appears to me that the Fish and Wildlife Service has engaged in a similarly unreasonable expansion of terms in the present case.
I do not find the unreasonableness of the Service’s construction to be in any way alleviated by the Senate Committee Report stating that “ ‘[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, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 973, 2995 (quoted by Mikva Op. at 9). Should one committee of the anti-smoking Congress have included in its discussion of the “No *13Smoking” sign authorization language to the effect that “ ‘smoking’ is defined in the broadest possible manner to include every conceivable way in which a person can ‘smoke’ or attempt to ‘smoke’ any form of tobacco,” that still would not convince me that the term could be defined to include chewing. Nor does the majority’s reliance on that same sort of legislative history convince me that Congress, by mandating the broadest possible manner of definition, intended to deprive the definition of any bounds whatsoever and turn the word into a free form concept inclusive of anything an agency might wish it to cover.
I am bolstered in my conviction by another rule of statutory construction: that is, the presumption against surplusage. “[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackie v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). The construction placed upon the word “harm” by the agency and adopted by the court today renders superfluous everything else in the definition of “take.” If “harm” means any “act which actually kills or injures wildlife,” including “habitat modification or degradation,” I can see no reason why Congress also included in the definition of “take” the terms “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect.” 16 U.S.C. § 1532(19). Every single one of those acts, particularly when coupled with further language of the congressional definition which includes “to attempt to engage in any such conduct,” id., falls within the definition of “harm” as understood by the agency. I am unwilling to believe that Congress deliberately wasted the considerable ink and paper devoted to the many copies of this legislation containing all the other words in section 1532(19). I am, therefore, unwilling to accept the Service’s definition in the present case, no matter how well intended.
Because I would void the regulation at this early stage, I would'not reach the void-for-vagueness claim. I would observe, however, that I do not see how a definition as boundless as the agency conceives for the word “take” and the component “harm” of its definition could readily avoid being impermissi-bly vague.
I respectfully dissent.
. The only word replaced by ellipses is "harm,” the word under examination.