Overview
- A Sept. 14 memorandum from Fish and Wildlife Director Brian Nesvik confines the ESA concept of “take” to affirmative conduct done with intent to affect a particular animal, the agency confirmed after the memo was posted online.
- The agency links the memo to a July final rule that rescinded the regulatory definition of “harm,” a move that removed automatic habitat‑based protections from ESA enforcement.
- Environmental groups and a coalition of states have already sued to block the July rule and are preparing or weighing challenges to the Sept. 14 memo under the Administrative Procedure Act and other laws.
- Conservationists warn the combined changes would exempt foreseeable, unintentional deaths from activities like commercial fishing, ship strikes, and logging, endangering species such as sea turtles, corals, and the roughly 380 North Atlantic right whales.
- The memo invokes Justice Antonin Scalia’s dissent in the 1995 Babbitt v. Sweet Home case, reversing decades of broader agency practice, and critics say tying non‑binding guidance to a binding rule increases the chance courts will resolve the dispute.