U.S. Fish and Wildlife Service Memo Underscores Trump Administration’s All-Fronts War on Wildlife

Brian Nesvik, director of the U.S. Fish and Wildlife Service, issued a memorandum explaining to FWS staff that the Endangered Species Act’s prohibition on unauthorized “take” applies only to affirmative acts intentionally and purposefully directed at a particular animal. This follows the Trump administration’s rescission of the regulatory definitions of “harm” under the ESA, which took effect this week.  

“This memorandum — and other recent Endangered Species Act regulatory rollbacks such as the recission of the longstanding interpretation of “harm” — make clear that the Trump administration has declared an all-out war on America’s wildlife,” said Andrew Bowman, president and CEO at Defenders of Wildlife. “The administration’s absurdly narrow statutory reinterpretation hamstrings the ESA’s effectiveness and makes a mockery of our nation’s half-century commitment to saving and recovering America’s imperiled wildlife.”

The results speak for themselves: the ESA is the world’s most successful wildlife protection law, protecting 99% of listed species from extinction and enjoying broad support among Americans across the political spectrum. The Trump administration is putting that record in jeopardy. In enacting and subsequently amending the ESA, Congress made it abundantly clear that “take” broadly covers unintentional take. This includes not only habitat destruction that kills or injures listed species by depriving them of their homes, food and ability to reproduce, but also other forms of take such as vessels or motorized vehicles that run over and kill imperiled animals like the North Atlantic right whale, Florida panther and desert tortoise.  

The ESA’s “incidental take” provisions allow accidental take, where animals die as the unintentional result of otherwise lawful activities, to be minimized and mitigated while permitting these activities to proceed. FWS’s constrained reinterpretation of “take,” expressed in the harm rescission and explained in its internal memo, eviscerates the ESA’s “incidental take” provisions for both federal and private actions, effectively limiting their use to one extraordinarily limited circumstance: where a person specifically intends to kill a non-listed animal, but accidentally kills a listed animal instead.  

“This reinterpretation flies in the face of the ESA’s plain language and common sense, as well as Congress’s intent more than 50 years ago in enacting the ESA to achieve the goal of protecting and fully recovering listed species,” Bowman said.

Defenders has challenged the finalized rescission of the harm rule in court to restore protections for imperiled species and the landscapes they call home and will take all possible actions to ensure a reversal of the statutory interpretation the memorandum describes.

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