US Fish and Wildlife Service memo narrows Endangered Species Act protections, echoing 1995 Scalia dissent
A newly circulated internal memo at the Fish and Wildlife Service redefines “take” under the Endangered Species Act to cover only intentional actions, prompting criticism from conservation groups and legal experts.
The U.S. Fish and Wildlife Service (FWS) has issued a memo to field offices directing staff to interpret the Endangered Species Act (ESA) narrowly, limiting the definition of “take” to actions specifically intended to target an animal. The guidance, dated September 14, states that incidental harm, such as a vessel unintentionally striking a whale or a tree being felled for reasons other than killing bats, does not constitute a prohibited take.
Environmental advocates warn the change could undermine decades of ESA enforcement that required businesses to assess and mitigate impacts on critical habitat. “This is an incredibly sneaky and disingenuous way of going about things,” said Ben Levitan, senior attorney at Earthjustice.
The memo follows an earlier rule revision that removed habitat destruction from the ESA’s definition of harm, a move the administration justified as reducing costs for landowners. Critics argue the combined effect permits the death of endangered species as long as the landowner’s motive is not to kill the animal.
Legal scholars note the policy mirrors Justice Antonin Scalia’s dissent in a 1995 Supreme Court case, which argued the ESA should protect only intentional killings, not broader habitat impacts. “Only action directed at living animals constitutes a ‘take,’” Scalia wrote.
The Department of the Interior’s spokesperson defended the revisions, saying they curb “decades-old regulatory overreach” and that the ESA still prohibits intentional take, harassment, and killing of listed wildlife. The administration faces lawsuits from a coalition of state attorneys general challenging the changes, and experts predict the FWS will struggle to justify the narrow reading in court.
“What the administration is proposing to do is take all of the force out of what we have all understood the act to mean: Don’t kill endangered species,” said Harvard law professor Andrew Mergen.
“To say that the law is settled in favor of Scalia’s dissent? Absolutely not,” said Vermont law professor Patrick Parenteau.
The dispute centers on whether the ESA’s language mandates protection of species populations and habitats or is limited to intentional, direct harm to individual animals.