The Trump administration has issued a reinterpretation of the Endangered Species Act that would narrow the definition of prohibited actions against protected wildlife. According to a September 14 memo from Fish and Wildlife Service director Brian Nesvik to field offices, actions that foreseeably harm or kill endangered animals would no longer be considered violations unless the harm or death was specifically intended. The administration provided examples stating that an accidental vessel strike on a whale or felling a tree containing roosting bats would not constitute illegal “take” under the law unless those actions were deliberately directed at the animals.
The reinterpretation effectively shields economic activities such as logging, mining, and industrial development from Endangered Species Act prohibitions on “take” when those operations foreseeably but unintentionally cause wildlife deaths or injuries. This follows an earlier July action by the Trump administration that repealed the ESA’s definition of prohibited “harm,” which had previously included habitat modification or degradation. Interior Secretary Doug Burgum defended the July repeal by stating that federal agencies had “abused the ESA to obstruct lawful land use and burden American families and businesses.” The Interior Department maintained in a statement that the new interpretation aligns the regulations with what Congress originally enacted.
Environmental groups have strongly opposed the reinterpretation. The Center for Biological Diversity cited the 1995 Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, in which the court rejected the argument that “take” requires deliberate targeting of endangered species. The organization’s government affairs director characterized the change as an illegal attempt to rewrite the statute. Earthjustice similarly stated the administration’s position amounts to allowing harm to endangered species as long as it is claimed to be unintentional.
The reinterpretation represents the latest in a series of environmental policy changes under the Trump administration since last January. The administration has moved to weaken protections for old-growth forests, removed drilling restrictions near a New Mexico heritage site, and directed consideration of delisting gray wolves from the Endangered Species Act. Over 1,600 critically imperiled species currently receive federal protection under the ESA and could be affected by these policy shifts.
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