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Interior's memo confines Endangered Species Act 'take' to conduct aimed at a particular animal
The Fish and Wildlife Service has rewritten what counts as killing a protected animal under the 1973 law, and the new test is whether someone meant to do it. The Interior Department confirmed the guidance to AFP.
The Scientist · Science desk
What happened
- Fish and Wildlife Service director Brian Nesvik signed the Sept. 14 memorandum, which redefines the Endangered Species Act term 'take', covering the pursuit, killing or capture of a protected species.
- The Center for Biological Diversity posted the directive online; under it, deaths resulting from the foreseeable risks of activities such as commercial fishing or logging are exempt from the 1973 statute.
- The Interior Department, confirming the document to AFP, said the take prohibition continues to cover harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing and collecting protected wildlife.
- Earlier finalized rules had already rescinded the definition of 'harm' covering habitat destruction, ended automatic protection for threatened species and injected economic trade-offs into critical habitat decisions.
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Why it matters
- constraint Federal enforcement now has to prove purpose. That is a harder case to assemble than documenting a death and a foreseeable cause, and the burden sits with the government, not the operator.
- decision Fisheries, timber and vessel operators who built avoidance programs around accidental kills must now decide whether to keep funding them without federal liability behind the spend.
- contradiction Interior's confirmation lists killing and wounding as still prohibited, while the guidance it defends limits every one of those verbs to conduct aimed at an animal, so the two descriptions of scope do not match.
- precedent Grounding agency guidance in the losing side of a 1995 ruling invites the litigation that would settle the definition, and AFP notes the court hearing it has moved rightward since.
The memorandum confines "take" to "affirmative conduct intentionally directed against a particular animal or animals" [2]. It gives two illustrations. "A vessel that inadvertently strikes a whale has not taken it, because the vessel's course was not set against the whale," the document says, quoting Scalia [7]. "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," it continues [8].
Those examples are real for one population. AFP reports that around 380 North Atlantic right whales remain, and that their main threats are entanglement in fishing gear and collisions with ship traffic [19]. Neither is conduct set against a particular animal, so both sit outside the new definition [20].
Interior described the document as the service's guidance for implementing the Endangered Species Act following the final rule that rescinded the regulatory definition of "harm" [5]. What changes is what a documented death can support: under the previous reading an enforcement case could begin with a dead protected animal and a foreseeable cause, and under this one it begins with evidence about purpose.
The legal footing is a dissent. In Babbitt v. Sweet Home, an association of landowners and loggers challenged the prevailing definition of take, arguing that a woodpecker species and an owl had injured them economically by preventing them from conducting their business, and the Supreme Court ruled against them 6-3 [10]. The memorandum explicitly cites the dissent of the late Justice Antonin Scalia in that case [9]. AFP notes the high court has shifted considerably rightward since [11]. The reading now guiding the Fish and Wildlife Service is the one three justices held and six rejected [21].
Gib Brogan, campaign director for Oceana Fisheries, told AFP: "What's being put forward by the Trump administration is going to cut the heart out of the Endangered Species Act" [15]. He said the law had been successful at saving species for five decades by carefully balancing human economic needs against conservation [16]. Of the earlier rules, he said the latest is "maybe the most significant of them" [17]. "We're very concerned what this is going to mean for sea turtles, for corals, for threatened and endangered whale species," he added [18].
What to watch
- Whether the guidance is challenged in court, and whether Babbitt v. Sweet Home gets re-tested before the current Supreme Court.
- Whether the Interior Department publishes the memorandum itself, rather than leaving the text in the Center for Biological Diversity's posting.
- Whether recorded North Atlantic right whale mortality from entanglement and vessel strikes moves once those deaths are outside the take prohibition.