A Sept. 14 Memo From the Fish and Wildlife Service Director Says a Ship That Hits a Whale Hasn't 'Taken' It, and Felling a Tree Full of Bats Isn't a Crime Unless You Meant to Kill the Bats. It Would Gut the Endangered Species Act's Core Prohibition.

The Trump administration is quietly moving to strip the Endangered Species Act of the prohibition that has given it teeth for half a century, according to an internal memo obtained by The New York Times. Signed by U.S. Fish and Wildlife Service Director Brian Nesvik, dated September 14 and distributed to the agency's field offices, the memo reinterprets what it means to "take" a protected animal. Under the new reading, only an act intentionally directed at a particular animal counts. Accidental killing or injury, the way endangered animals almost always die in the United States, would no longer be illegal.

The memo spells out its logic with examples. "A vessel that inadvertently strikes a whale has not taken it, because the vessel's course was not set against the whale," it states. "Felling a tree is not a take of the bats roosting in it unless the tree is felled for the purpose of killing or capturing them." Field staff are told to look for four elements before treating anything as unlawful take: an affirmative act, an act intentionally directed at an animal, a direct and immediate effect, and a particular animal rather than a population, future occupants or unoccupied habitat.

Congress defined "take" in the 1973 law, signed by President Richard Nixon, as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." For decades, enforcement has run through a permitting system built on the premise that foreseeable, incidental deaths are illegal unless authorized. A developer who wants to build houses on land that is home to endangered salamanders applies for an incidental take permit, agrees to protective measures and perhaps pays for conservation elsewhere, and in exchange is absolved of killing a set number of animals. The memo appears to upend that entire structure, since an unintended death would no longer need a permit at all. The Interior Department did not answer questions about the document directly; its media office said the act "continues to prohibit take of endangered wildlife, including actions that harass, pursue, hunt, shoot, wound, kill, trap, capture or collect listed wildlife, or attempts to do so."

"This is really an assault on the act like we've never seen before," Andrew Mergen, a Harvard law professor who once supervised Endangered Species Act litigation at the Justice Department, told the Times. "What they seem to be saying in this document is, it doesn't matter if you killed an endangered species if you didn't mean to." Brett Hartl of the Center for Biological Diversity called it a "Get out of jail free" card for wildlife killers and said the group considers the directive "profoundly unlawful." Critics point to the Supreme Court's 1995 decision in Babbitt v. Sweet Home, in which the majority rejected the argument that take is limited to conduct intentionally directed at particular animals.

The timing is not incidental. September 14 was also the day a separate rule took effect that rescinded the regulatory definition of "harm," which had expressly covered habitat destruction that kills or injures protected wildlife. That rule, announced in July, is already in court. Between September 10 and 12, a coalition of 21 attorneys general led by California's Rob Bonta and joined by New York's Letitia James filed two lawsuits in the Northern District of California challenging what they call the Harm Rule, the Habitat Exclusion Rule and the 4(d) Rule. "The Trump administration is tearing down those protections and pushing countless endangered species closer to extinction," James said. Interior spokesperson Charlotte Taylor responded that the suit "seeks to preserve a decades-old regulatory overreach that expanded the Endangered Species Act beyond the authority granted by Congress."

The Nesvik memo goes considerably further than the harm rule, because it does not merely narrow one word in the statute. It imposes an intent requirement on the entire concept of take. Conservation groups say that could remove logging, mining, water diversions, shipping and development from the act's reach so long as no one aims at an individual animal. Two bipartisan efforts to reverse the earlier rule are pending: a bill from Representatives Brian Fitzpatrick, a Pennsylvania Republican, and Mike Quigley, an Illinois Democrat, and a Congressional Review Act resolution from Senators Adam Schiff and Sheldon Whitehouse, whose office says they will try to force a vote in the coming weeks. With the House adjourned until after the midterms, the courts are the only venue likely to act before November.