Trump Threatens 50 Years of Wildlife Protection With One Memo

One of the Endangered Species Act’s most fundamental protections for imperiled species is prohibiting unauthorized “take,” a term Congress defined broadly to include killing, harassing, wounding, harming, and more. But in July of this year, the Trump administration eliminated the longstanding regulatory definitions of “harm,” removing the take prohibition for wildlife killed or injured by significant habitat destruction. Exactly two months later, the administration doubled down. In identical memos dated September 14, the US Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries declared that take applies only to affirmative acts intentionally directed at particular animals. This radical reinterpretation substantially narrows what it means to take protected species, and therefore drastically limits how the ESA can protect them.

To understand why this matters, consider how Congress designed the ESA over 50 years ago: not only to prevent extinction, but also to ensure recovery of listed species. A key component of that design is the statute’s expansive definition of take. The Supreme Court later confirmed that take encompasses the whole spectrum of human activities that affect animals—directly and indirectly, intentionally and incidentally—from shooting or trapping them to destroying the places they live, forage, and reproduce. This does not mean that the ESA categorically prohibits development, logging, resource extraction, or other activities. In fact, its incidental take provisions have long provided a way for otherwise lawful activities to proceed, but in a way that reduces impacts on protected species.

The ESA is credited with preventing the extinction of 99% of species placed under its protection. It has conserved habitat for countless species: securing wildlife corridors and crossings for Florida panthers; protecting the mature forests red-cockaded woodpeckers need to survive; and reducing the impacts of development and off-road vehicles on desert tortoises. For more than 50 years, the law has provided a practical framework for protecting species while allowing responsible development to move forward.

We cannot protect wildlife by pretending foreseeable but unintentional take doesn't count.

The administration’s radical reinterpretation of take guts much of that framework.

Under this reinterpretation, take applies only to conduct intentionally directed at a particular animal. So if a bulldozer clearing land for a highway crushes and kills an owl in the process, that's no longer take—because no one meant to kill that owl. And if owls die because the land that was cleared included the old growth trees they need for shelter, that’s no longer take either—because again, no one meant to kill those owls. If an ATV crushes shorebird nests on a beach or a car hits a Florida panther or a boat strikes a right whale, the wildlife agencies say those deaths no longer constitute take under the ESA unless the rider, driver, or boater was aiming their vehicle at an animal, purposefully trying to hurt it.

This reinterpretation isn't a mere technicality. If an action isn’t take, key ESA provisions designed to prevent or minimize the impacts of the action on listed species won’t apply. For example, the reinterpretation threatens to make incidental take permits and incidental take statements unnecessary in many circumstances where they have historically been required—the very mechanisms that have required developers, timber companies, and infrastructure projects to reduce impacts on species while their projects move forward. Without those requirements, important safeguards that have historically minimized and mitigated foreseeable injury and death could disappear.

For example, if a harbor has become obstructed with built-up sediment that makes it difficult for ships to maneuver, the sediment is often removed with a hopper dredge that essentially vacuums the seabed. Unfortunately, if an endangered or threatened sea turtle is resting on the seabed, it can be trapped, crushed, dragged, or drowned by the hopper. The ESA doesn’t prevent the use of hopper dredges, but its incidental take provisions have helped to ensure that if hopper dredging occurs in sea turtle habitat, actions are taken to prevent or minimize the impact, like requiring the use of screens or other technology to protect turtles, or prohibiting hopper dredging during certain seasons. But under this reinterpretation, since killing or wounding sea turtles isn’t the purpose of operating a hopper dredge—clearing out sediment is—killing or wounding sea turtles with a hopper dredge isn’t take. So, the ESA’s take provisions will no longer be used to prevent or limit those injuries and deaths.

The administration’s extreme reinterpretation is a revival of an argument the Supreme Court decisively rejected more than 30 years ago. In a 1995 decision called Babbitt v. Sweet Home, by a six to three vote, the court upheld the regulatory definition of harm that the administration has now abandoned, reasoning in part that Congress' 1982 amendments—that created the incidental take permitting system—only make sense if take already covered indirect, non-purposeful harm like habitat modification. Justice Antonin Scalia dissented, arguing for the narrower reading the administration has now embraced.

The ESA’s success depends in significant part on its ability to address habitat loss and the foreseeable injury or death caused by otherwise lawful activity. The Trump administration has adopted an extremely narrow reinterpretation of take that eviscerates this longstanding framework, putting not just individual species at risk, but also the web of biodiversity and ecological systems all of us depend on. Estimates put the annual value of ecosystem services—clean water, crop pollination, pest control, flood mitigation, and more—at roughly $5 trillion. The loss of wildlife isn't an isolated event; it's the unraveling of interconnected systems that provide these benefits, often invisibly, until they're gone.

We cannot protect wildlife by pretending foreseeable but unintentional take doesn't count. The law has never required us to choose between conservation and progress. It requires us to confront the consequences of our actions before they become irreversible. Congress enacted the Endangered Species Act to prevent all extinction, not merely intentional extinction. After 50 years of progress, we should not pretend there is a meaningful difference.