The memo issued by U.S. Fish and Wildlife Service Director Brian Nesvik is the most drastic move yet in the Trump administration’s campaign to limit the scope of the Endangered Species Act.
Wildlife advocates and experts said the nation’s bedrock wildlife conservation law would offer few safeguards under the new federal guidelines.
“Unless you’re wearing a T-shirt that says, ‘I’m here to draw the blood of endangered species,’ you’re basically off the hook,” said Brett Hartl, government affairs director with the Center for Biological Diversity, a conservation nonprofit. “Wink, wink, nudge, nudge, go crazy, we’re not gonna prosecute you.”
Chris Servheen, who served as grizzly bear recovery coordinator for the U.S. Fish and Wildlife Service for 35 years, said the agency’s current approach to the endangered species law is “ridiculously extreme.”
“It’s essentially going to be a meaningless law, and it will have no protection whatsoever for species,” he said. “It’s like taking the four wheels off your car and saying it’s still your car.”
Earlier this year, the Fish and Wildlife Service and other federal agencies finalized a rule excluding the destruction of habitat from the definition of “harm” covered by the law. As long as chopping trees or draining a wetland didn’t directly kill animals, the feds said, those actions were legal even if they led to a species’ demise.
Now, Nesvik is instructing wildlife officials that even the direct killing of endangered animals does not constitute an illegal “take” as long the action was not “intentionally directed at a particular animal or animals.” Its instructions to staff on how to implement the new rule take effect immediately.
“A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale,” he wrote. “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.”
The memo could unravel a longstanding framework in which developers and other industries undergo an environmental analysis for their projects’ impacts to endangered species, and obtain permits accounting for that harm. Wildlife advocates warned that industries using the agency’s new directive to forgo permits may still face citizen lawsuits, and a new administration could reinstate the previous interpretation of the law.
The Fish and Wildlife Service forwarded a Stateline request for comment to the Department of the Interior, which did not grant an interview request.
The memo, sent last Monday to agency staff across the country, quickly raised alarms after it was leaked to the public.
“This is an incredibly sneaky and disingenuous way of going about things,” said Ben Levitan, senior attorney with the biodiversity defense program at Earthjustice, a legal conservation nonprofit. “They led everyone to believe they were doing one thing with the rescission of the definition of harm, and now they’ve issued a memo saying, ‘What we actually meant was this.’”
A coalition of attorneys general, tribes and environmental groups have filed lawsuits challenging the Trump administration’s rollbacks to the Endangered Species Act. Advocates said the Nesvik memo will open up a new battle ground in the ongoing legal fight, but it’s too early to say if that will come in the form of separate lawsuits.
Jane Davenport, senior attorney at Defenders of Wildlife, a conservation nonprofit, noted that the “harm” rule and Nesvik’s memo draw heavily from the late Supreme Court Justice Antonin Scalia’s dissent in a landmark 1995 case. In a 6-3 decision, the Supreme Court ruled that habitat destruction constitutes harm to wildlife under the Endangered Species Act. But Scalia disagreed, saying that the “take” of wildlife describes actions “done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals).”
“(Nesvik’s) decision in every aspect of it entirely relies on Scalia’s dissent,” she said. “It’s reducing the scope of (endangered species protections) to an absurdly narrow interpretation that is inconsistent with what Congress intended.”
While some industry groups supported the “harm” rule in public comments, few of the organizations or lawmakers who backed that change have made public statements on Nesvik’s memo about how it will be applied. But some conservatives praised the decision.
“It will shield innocent people from litigation by the country’s largest law firm, the Department of Justice,” William Perry Pendley, who served as acting director of the Bureau of Land Management during Trump’s first term, told Cowboy State Daily.
Wildlife advocates said the memo could allow developers or logging companies to knowingly chop down a forest filled with endangered owls or bats, so long as the purpose of their action was timber harvest.
“(The memo) says you can knowingly kill an endangered species as long as you’re not killing it for the sake of killing it,” said Kate Groetzinger, communications director with the Center for Western Priorities, a conservation group. “This basically is a blank check to companies, landowners, developers, loggers — anyone operating in endangered species habitat — to both destroy that habitat and kill the animals and literally face no consequences.”
Servheen, the former grizzly bear recovery coordinator, said the memo will allow hunters to gun down endangered species, as long as they later claim they mistook a grizzly bear for a black bear or a similar failure of species identification.
“This tells law enforcement that they have no ability to prosecute somebody who kills a grizzly bear,” he said. “(Hunters) are basically relieved of any responsibility of what they’re shooting, you can do whatever you want and say ‘I didn’t mean to.’ It makes the outdoors a pretty dangerous place now.”
The memo could also limit environmental reviews of potentially harmful projects, some advocates warned. For instance, a new road through Florida panther territory may no longer need an environmental analysis if increased vehicle collisions with panthers are no longer considered “take” by federal wildlife officials, Davenport said.
During the rulemaking process for the “harm” definition, federal officials argued that the change would empower states to protect wildlife under their own laws. But experts say state wildlife agencies lack the authority, resources and expertise to replace federal oversight.
Wildlife officials in Arizona, Georgia, Louisiana, New Mexico, North Dakota, New Jersey, Vermont and Wyoming submitted public comments expressing concern with the proposal, as did the Association of Fish & Wildlife Agencies, a nonprofit that represents state wildlife managers.
Stateline reporter Alex Brown can be reached at abrown@stateline.org.
This story was originally produced by Stateline, which is part of States Newsroom, a nonprofit news network which includes Arizona Mirror, and is supported by grants and a coalition of donors as a 501c(3) public charity.
Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com.
