USA18 September, 20262 min read
Trump Administration Reinterprets Endangered Species Act, Allowing Incidental Harm to Protected Wildlife
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Fish and Wildlife Service memo redefines 'take' to allow incidental harm to protected species. Policy narrows ESA protections by excluding incidental harm from illegal take penalties.
ESA “take” narrowed
The Trump administration is advancing a reinterpretation of the Endangered Species Act that would generally treat incidental harm to protected wildlife as not unlawful unless the conduct was intentionally directed at the animals.
“Under the new standard, incidental harm to protected wildlife would generally not be unlawful unless the conduct was intentionally directed at the animals.”
U.S. Fish and Wildlife Service Director Brian Nesvik outlined the new standard in an internal memo, and the reinterpretation targets the ESA idea that a species does not need to be deliberately hunted to be driven toward extinction.
The reinterpretation follows the administration’s rule rescinding the regulatory definition of “harm,” which officially took effect on September 14, and it comes as the administration also moved to review protections for gray and Mexican wolves.
Susan Holmes, the executive director of the Endangered Species Coalition, said, “This is an all-out assault on the Endangered Species Act and the wildlife it was created to save,” and she warned that the administration is “now tearing that barrier down.”
Memo examples and backlash
The reinterpretation is tied to the memo’s examples, including the statement that “A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale.” The Center for Biological Diversity’s Brett Hartl argued that the administration’s position would give “wildlife killers a get out of jail free card,” and he said the move would be “a flagrant and illegal attempt to rewrite the Endangered Species Act via unilateral fiat.”
The Interior Department told The Hill that the memo “accurately reflects the US Fish and Wildlife Service's guidance for implementing the Endangered Species Act,” and it said the ESA’s prohibition on “take” continues to prohibit conduct including “killing.” Andrew Bowman, president and CEO at Defenders of Wildlife, said the memo “make clear that the Trump administration has declared an all-out war on America’s wildlife,” and he charged that the reinterpretation “hamstrings the ESA’s effectiveness.”
What is at stake
Environmental advocates warned that the reinterpretation would remove core safeguards for species, and Oceana vice president Beth Lowell said the changes “will remove the core safeguards that have prevented the extinction of 99% of species protected under the act.” Holmes tied the policy shift to specific species, saying “If the Trump administration has its way, piping plovers will lose the beaches where they nest,” and she warned that “Rice's whale—the only whale to live only in American waters—will be lost forever.”
“‘It just creates a huge loophole,’ added Ashe, who is now president of the Association of Zoos and Aquariums.”
The Guardian reported that more than 1,600 critically imperiled species protected under the ESA face losing further federal protections after the September 14 memo distributed to FWS field offices by Brian Nesvik. The Spectrum News report from BILLINGS, Mont. said the directive would require imperiled animals or plants to be intentionally targeted for their killing to be considered illegal, and it quoted Dan Ashe saying, “It just creates a huge loophole.”