Overview
- The Fish and Wildlife Service issued a Sept. 14 memorandum that narrows the statutory ban on “take,” saying unlawful take requires an affirmative act intentionally directed at a particular animal.
- The memo gives concrete examples, saying a ship that inadvertently strikes a whale or cutting a tree that kills roosting bats would not qualify as take unless done to kill or capture the animals.
- The directive is being used to implement a July final rule that removed the regulatory definition of “harm,” which had covered habitat destruction and indirect injuries to listed species.
- Twenty states and Washington, D.C. have already sued over the July rule and conservation groups are preparing or pursuing litigation over the Sept. 14 memo, leaving the policy’s fate to the courts.
- Scientists and advocates warn the changes could exempt foreseeable incidental deaths that threaten species such as right whales, sea turtles and coastal birds, while the administration says the move reclaims the law’s text and reduces regulatory burdens.