The Endangered Species Act has prohibited foreseeably killing protected wildlife since 1973. On September 14, the agency Congress built to enforce that law instructed its own officers to stop enforcing it. The Guardian counts more than 1,600 imperiled species protected under the Act, and every one of them just lost the part of the law that actually gets used.
A memo from Brian Nesvik, director of the U.S. Fish and Wildlife Service, distributed to field offices and obtained by the Center for Biological Diversity, reinterprets what it means to “take” an endangered species. Under the new reading, harming or killing a protected animal is only illegal if you specifically intended to harm or kill it. The Center for Biological Diversity reports the directive tells enforcement officers to look for an affirmative act, deliberately aimed at an animal, with a direct and immediate effect, on a particular animal rather than a population. Everything else is scenery.
The memo makes its argument with its own examples. “A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale.” And: “Felling a tree is not a take of the bats roosting in it unless the tree is felled for the purpose of killing or capturing them.” Run your tanker through a pod of whales. Drop a roost tree on a colony of endangered bats. As long as your paperwork says you were headed somewhere else, the law has nothing to say to you.
What the law actually says
Congress did not mince words in 1973. The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Every one of those verbs is about outcomes. None of them mentions state of mind.
In 1995, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court held 6-3 that “harm” includes significant habitat modification that actually kills or injures protected wildlife, rejecting the argument that “take” only covers conduct deliberately aimed at particular animals. As reported, the Nesvik memo adopts the interpretation from Justice Scalia’s dissent. The side that lost. A losing dissent is not law. This administration treats it as a to-do list.
The rollback began in July, when the administration finalized a rule rescinding the regulatory definition of “harm,” which for decades had expressly covered habitat modification that kills or injures wildlife, by significantly impairing feeding, breeding, and sheltering. Interior Secretary Doug Burgum defended the move by claiming that “for years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses.” The rule took effect September 14, the same day the memo arrived, and the rule’s own text says the quiet part: it expressly adopts the interpretation from the Scalia dissent in Sweet Home. The memo then tells field officers what that means in practice: nearly all foreseeable killing of endangered animals is now outside the law.
Who this is for
The beneficiaries are not subtle. The Guardian’s reporting says the reinterpretation “effectively excludes economic activities such as logging, mining and industrial development” from the take prohibition when those activities foreseeably kill wildlife without targeting it. The Center for Biological Diversity names logging, mining, development, water diversions. Habitat destruction is the leading cause of endangerment; The Center’s Noah Greenwald told the Deseret News that if you take away the prohibition on habitat destruction, “there’s just no way we’ll be able to save species going forward.” A take prohibition that excludes habitat destruction protects animals from exactly one threat: a person who sets out to shoot a whooping crane and confesses.
Defenders of Wildlife, in a statement, points out that the memo guts the incidental take permitting system too, shrinking it to “one extraordinarily limited circumstance: where a person specifically intends to kill a non-listed animal, but accidentally kills a listed animal instead.” That is a blank check with a government letterhead.
And it rhymes with the rest of the term. Trump has moved to weaken protections for old-growth forests, habitat for some 400 endangered species; scrapped drilling restrictions near a world heritage site in New Mexico; and ordered his administration to consider delisting gray wolves. At that wolf signing, Trump asked, “You can shoot them as of today?” Agriculture Secretary Brooke Rollins answered that Burgum “has to do a little magic, but yes.”
The steelman, and why it fails
The administration has an actual argument here, and it deserves the strongest version. The Interior Department says the old definition of “harm” stretched the statute beyond what Congress wrote, that reading a 1973 list of verbs to cover habitat modification was regulatory invention, and that Loper Bright obliges courts to exercise independent judgment about agency authority rather than defer to it. They add that the old rule let federal agencies burden landowners, farmers, and energy producers with unpredictable costs.
It fails on the record. The Supreme Court answered the habitat question in 1995, on the statute itself, six to three, and it did not defer to an agency’s creative interpretation; it read the law and said that is what the law means. Loper Bright is about whether courts must defer to an agency’s reading of an ambiguous statute. It cannot supply what this memo needs, because the reading being discarded is the one the Court itself adopted. And the incidental take system the administration is erasing never banned development. It required companies to minimize and mitigate foreseeable harm while lawful projects proceeded. That is what “burden” looks like to this Interior Department: being asked to care.
Twenty states and Washington, D.C. are already suing over the July rule; California Attorney General Rob Bonta announced the coalition on September 9. Earthjustice told the Guardian: “The government’s new legal position is a prescription for extinction. It says that as long as you claim you didn’t mean to kill an endangered species, the law can’t and won’t stop you.” The Center for Biological Diversity’s Brett Hartl calls the memo “a flagrant and illegal attempt to rewrite the Endangered Species Act via unilateral fiat.”
Why this costs more than a whale
There is a deeper problem than one memo. A law protects nothing if the government declines to enforce it. When an agency writes down, on its own paper, that its own statute means the opposite of what the Supreme Court said it means, the enforcement layer of the Endangered Species Act goes dark no matter what the statute books say. Courts can strike rules down, and litigation over these takes years, and a right whale or a Florida panther does not have years. The message to every logging crew, every driller, every captain who wants to shave a few hours off a shipping route is that the window is open now, and the people who answer the phone at the wildlife agency have been told not to pick up.
Hartl, of the Center for Biological Diversity, said killing endangered wildlife “is illegal, whether that’s your purpose or not.” He is right, and the memo is wrong, and the fight over which of those sentences governs the next fifty years is happening in the least glamorous venue imaginable: a field office directive that almost nobody was supposed to read.
The Act has kept 99 percent of listed species from extinction, according to Defenders of Wildlife. That record was built by a country that decided, in 1973, that a species blinking out forever was worth more than somebody’s quarterly convenience. The men rewriting that bargain by memo want to be remembered as cutting red tape. They are cutting the cord on the only line of defense 1,600 species have, and they know it, because they wrote down exactly what gets to die.