US Wildlife Directive Limits 'Take' to Intentional Harm Under Endangered Species Act

Federal wildlife officials in the United States have issued guidance stating that accidentally killing an endangered animal or plant is not illegal unless the species was deliberately targeted, a shift in how the country's landmark environmental law is enforced.

The directive, sent to US Fish and Wildlife Service employees on September 14 by Director Brian Nesvik, says that harming a protected species counts as an illegal "take" only when the conduct is aimed at killing or capturing it. In the document, Nesvik wrote that felling a tree is not a take of the bats roosting in it unless the tree is cut specifically to kill or capture them, describing such impacts as indirect and accidental.

The guidance follows a July rule from the wildlife service that narrowed the definition of "harm" under the Endangered Species Act, or ESA. According to the Interior Department, which oversees the service, the directive will shape how that rule is applied. The department said the law's prohibition on take still covers conduct such as harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife.

The interpretation draws on a dissenting opinion by former Supreme Court Justice Antonin Scalia in a 1995 case. For decades, the government had read harm broadly to include damage to the places where imperiled animals live.

Critics said the change would let timber companies log forests in the Pacific Northwest even when they know the work could kill protected birds, or allow developers to build a dam knowing it would kill salmon. Dan Ashe, who led the Fish and Wildlife Service under former President Barack Obama, said the move cuts against the entire history of the Endangered Species Act and creates a large loophole by relieving people of responsibility for predictable consequences.

Noah Greenwald of the Center for Biological Diversity called it a radical reinterpretation that would put polluters and other industry ahead of the natural world. Conservationists warn that if the changes stand, they could speed extinctions by allowing protected species to be killed and opening the door to habitat destruction.

The ESA is credited with rescuing iconic American animals such as the bald eagle, the American alligator and the California condor from the brink of extinction. Republicans rolled back several of its provisions during Trump's first term, only for those moves to be reversed under Democratic President Joe Biden and revived again in Trump's second term. States and conservation groups have filed numerous lawsuits seeking to turn back the changes.