Fish and Wildlife Service narrows definition of 'take' to intentional acts only

The Interior Department's Fish and Wildlife Service has issued a memo, signed by director Brian Nesvik, that redefines the word "take" under the Endangered Species Act (ESA). Previously the term covered actions like pursuing, harming, or killing a protected species, including consequences that were unintentional but foreseeable. Under the new memo, "take" is narrowed to mean "affirmative conduct intentionally directed against a particular animal or animals." That shift means wildlife deaths caused by foreseeable risks from activities such as commercial fishing or logging would no longer be treated as unlawful under the law.

The Interior Department confirmed the memo's authenticity. It said the memo "accurately reflects" the Fish and Wildlife Service's guidance following a separate final rule that rescinded the regulatory definition of "harm." The department added that the ESA's prohibition on "take" still covers conduct including harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting protected wildlife.

Under the ESA as it has long been applied, federal wildlife agencies could authorize the accidental killing or harming of protected species through Incidental Take Permits. These permits are available to non-federal entities, such as companies or state agencies, whose otherwise lawful activities are reasonably certain to incidentally harm a listed species. To get one, an applicant must submit a Conservation Plan (also called a Habitat Conservation Plan) laying out how it will minimize and offset that harm, for example through gear modifications, seasonal restrictions, or habitat restoration.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) jointly administer this system, with NMFS handling many marine species. Under NMFS's process, a Conservation Plan must state biological goals for the species involved, include monitoring for compliance and effectiveness, and go through public comment before an agency decides whether to issue a permit. Fish and Wildlife Service materials describe "take" broadly, covering not just direct killing but significant habitat modification that impairs behaviors like breeding, feeding, or sheltering. This is the definition of "take" and its associated concept of "harm" that the new memo and an earlier rule have now altered.

The take memo is one piece of a wider set of changes to how the Trump administration applies the ESA. The administration has separately redefined "harm" in a way that would allow activities such as oil drilling and mining in endangered species' habitats, as long as those activities do not directly kill or injure the animals. It has also ended the practice of automatically extending endangered-species protections to species newly listed as "threatened," and said it will weigh "economic considerations" when deciding whether to protect species at risk of extinction.

Interior Secretary Doug Burgum has argued the changes are needed because the ESA has been "weaponized" to block economic projects, weaken competitiveness, undermine national security, and hurt Americans. Separately, the administration announced it is shrinking two large stretches of protected land in Utah by more than 90%, opening millions of acres to fossil fuel extraction and mining. Combined, officials and outside observers describe these changes as overturning five decades of precedent in how the ESA has been interpreted and applied.

Dan Ashe, who led the Fish and Wildlife Service under President Barack Obama, said the new interpretation "cuts against the entire history of the Endangered Species Act." He called it "a huge loophole," arguing it "completely relieves people of any responsibility for their actions, even consequences that can be easily predicted." The Fish and Wildlife Service has historically held people liable for accidentally harming protected species such as grizzly bears, manatees, and spotted owls, a precedent Ashe's comment points to.

The changes have already drawn legal challenges. Attorneys general from 20 Democratic-led states, along with Washington, D.C., have filed lawsuits against the administration over the ESA overhaul. One lawsuit targets the redefinition of "harm," while a second challenges the rule ending automatic protections for newly threatened species and the new practice of factoring business interests into decisions about "critical habitat." Washington Attorney General Nick Brown said the administration "is trying to undermine the law, the will of Congress and the will of the people who overwhelmingly support protections for endangered species," adding that its approach to land and water is "one of exploitation" rather than stewardship.