Fish and Wildlife Service narrows Endangered Species Act enforcement to intentional killings

Overview

Updated Sep 20

A logging company can now cut a tree holding endangered bats, and a ship can strike an endangered whale, without breaking US law, as long as the animal wasn't the deliberate target. The US Fish and Wildlife Service told its field offices on September 14 to apply the Endangered Species Act's (ESA) ban on "taking" protected wildlife only to intentional acts directed at a particular animal.

The directive follows the agency's July removal of the regulatory definition of "harm," which had stood since 1975. The government now treats accidental or foreseeable deaths from logging, fishing, dam construction, and other industry as outside the law's reach, ending the permit system that required companies to mitigate such impacts. More than 1,600 critically imperiled species could lose this protection.

Why it matters

Accidental killing of endangered animals during logging, fishing, or development now carries no federal penalty and requires no permit.

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Key Indicators

1,600+

Critically imperiled species affected

Species listed under the ESA that could lose federal protection against accidental killings.

Years the 'harm' definition stood

The regulatory definition of 'harm' was adopted in 1975 and rescinded effective September 14, 2026.

Elements now required for a 'take'

An affirmative act, intentional direction at an animal, direct and immediate effect, and a particular animal.

Voices

Curated perspectives — historical figures and your fellow readers.

People Involved

Brian Nesvik

Director, US Fish and Wildlife Service

Issued the September 14 memo narrowing 'take' enforcement

Sandi Snodgrass

Partner, Holland & Hart LLP

Attorney representing developers, energy companies, and utilities

Pat Parenteau

Emeritus professor, University of Vermont law school

Environmental law scholar tracking the policy

Organizations Involved

U.S. Fish and Wildlife Service

Federal Agency

Issued the September 14 memo and rescinded the 'harm' definition

The federal agency responsible for enforcing the Endangered Species Act for land and freshwater species.

National Marine Fisheries Service

Federal Agency

Co-issued the July rule rescinding the 'harm' definition

The NOAA agency that administers the Endangered Species Act for marine species alongside the Fish and Wildlife Service.

Center for Biological Diversity

Environmental nonprofit

Obtained and publicly shared the September 14 memo

A conservation group focused on protecting endangered species through science, advocacy, and litigation.

Timeline

December 1973 September 2026

6 events Latest: September 17th, 2026 · 2 months ago

Tap a bar to jump to that date

September 2026
Memo made public by Center for Biological Diversity
Latest Disclosure

The conservation group releases the internal memo, drawing widespread attention and promising legal challenges to the reinterpretation.
September 17th, 2026
Nesvik memo narrows 'take' enforcement
Policy

FWS Director Brian Nesvik instructs field offices that 'take' requires an affirmative act intentionally directed at a particular animal with direct and immediate effect.
September 14th, 2026
July 2026
Final rule rescinds 'harm' definition
Regulatory

FWS and NMFS publish a final rule removing the regulatory definition of 'harm' from Title 50 parts 17 and 222, effective September 14.
July 14th, 2026
June 1995
Supreme Court upholds 'harm' definition
Legal

In Babbitt v. Sweet Home, the Court rules 6-3 that the agencies' 'harm' definition was a reasonable reading of the statute, endorsing habitat-modification liability.
June 29th, 1995
1975
'Harm' definition adopted by agencies
Regulatory

Fish and Wildlife Service and National Marine Fisheries Service define 'harm' to include significant habitat modification or degradation that actually kills or injures wildlife.
1975
December 1973
Endangered Species Act signed into law
Legal

The ESA makes it illegal to 'take' endangered species, defining take to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting.
December 28th, 1973

Scenarios

Federal court strikes down narrowed 'take' interpretation

Possible Resolves by End of 2027

Discussed by: Center for Biological Diversity and environmental law scholars including Pat Parenteau

Environmental organizations file citizen suits naming the Fish and Wildlife Service and the Interior Department. They will argue the statutory text and legislative history of the ESA's 'take' provision include unintended killings, and that the memo contradicts the Supreme Court's 1995 Sweet Home ruling. Courts previously deferred to agencies on this question, but that deference favored broad protection; now the agencies must defend a narrow reading against a settled precedent.

Policy stands; citizen suits become the only enforcement lever

Likely Resolves by End of 2027

Discussed by: Sandi Snodgrass (Holland & Hart) and Pat Parenteau

If courts uphold the interpretation or dismiss challenges for lack of standing, the Fish and Wildlife Service stops citing companies for accidental kills. Incidental-take permits shrink to hunters, trappers, and anglers. Enforcement shifts entirely to private citizen suits, which face high procedural hurdles because the statute makes enforcement discretionary.

Congress restores the 'harm' definition by statute

Unlikely Resolves by Jan 3, 2027

Discussed by: Environmental advocacy groups urging a legislative fix

A bipartisan bill would codify 'harm' to include habitat modification and foreseeable deaths from industrial activity. This is the only durable reversal short of a court ruling, but a divided Congress makes passage improbable in the current term.

Historical Context

3 moments from history that rhyme with this story — and how they unfolded.

June 1995

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)

The Supreme Court upheld the 'harm' definition by a 6-3 vote, ruling that habitat modification that actually kills or injures listed wildlife qualifies as a prohibited 'take.' The case involved logging in Oregon's old-growth forests where the northern spotted owl lived.

Then

Loggers and landowners remained liable for habitat destruction harming listed species.

Now

The ruling cemented the 'harm' definition as settled law for three decades, making it the legal backbone of habitat protection under the ESA.

Why this matters now

The current administration is removing the exact definition the Supreme Court endorsed in 1995, reversing a precedent that had been stable for 51 years.

1982

Palila v. Hawaii Department of Land and Natural Resources (1982)

The Ninth Circuit held that the state of Hawaii violated the ESA by maintaining feral goats and sheep that destroyed the habitat of the endangered palila bird. The court ruled this habitat destruction constituted a prohibited 'take' even though no animal was directly killed.

Then

Hawaii was ordered to remove the feral animals from palila habitat.

Now

The ruling established that indirect, habitat-mediated harm counts as 'take,' expanding the law's reach beyond direct killing.

Why this matters now

The new memo explicitly rejects liability for habitat destruction, reversing the logic that has governed indirect harm since this case.

August 2019

Trump administration ESA regulatory overhaul (2019)

The Fish and Wildlife Service and National Marine Fisheries Service finalized rules narrowing how the ESA is implemented, including a stricter definition of 'foreseeable future' for threatened species and limits on critical habitat designations.

Then

Environmental groups filed multiple lawsuits challenging the rules; some provisions were struck down.

Now

The 2019 changes established a template for administrative weakening of the ESA without congressional action, which the 2026 rescission follows.

Why this matters now

This is the same administration using the same playbook: changing agency interpretation to narrow a law Congress wrote, then defending it in court.