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Fish and Wildlife Service says accidental killing of endangered wildlife is not illegal

Washington, District of ColumbiaPublished 18 Sep 2026

Interior Secretary Doug Burgum swears in Brian Nesvik as U.S. Fish and Wildlife Service director
Interior Secretary Doug Burgum swears in Brian Nesvik as U.S. Fish and Wildlife Service director

U.S. Department of the Interior / Wikimedia Commons, Public domain · source

A Sept. 14 memo from Fish and Wildlife Service Director Brian Nesvik tells field offices that Endangered Species Act “take” covers only acts intentionally aimed at a particular animal, so incidental deaths from logging, shipping, or development would not be treated as illegal.

Placeholder: a short composite summary of how these sources overlap will be written here.

Shared facts

The ESA defines take as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt those acts.

In 1995 the Supreme Court in Babbitt v. Sweet Home, 6–3, rejected the argument that take is limited to conduct intentionally directed against particular animals.

In July the Trump administration rescinded the ESA regulatory definition of harm that covered significant habitat modification that actually kills or injures wildlife.

On Sept. 14, Fish and Wildlife Service Director Brian Nesvik issued a directive to field offices on what counts as take under the Endangered Species Act.

The Center for Biological Diversity obtained and made the Nesvik memo public.

The Nesvik directive says harming or killing an endangered animal is not illegal unless the action was specifically intended to target that animal.

The memo says a vessel that inadvertently strikes a whale has not taken it because the vessel’s course was not set against the whale.

Nesvik wrote that felling a tree is not a take of bats roosting in it unless the tree is felled to kill or capture them, and that the bats would be impacted only indirectly and accidentally.

The reinterpretation treats logging, mining, and industrial development as outside ESA take when those activities foreseeably kill wildlife without intentionally targeting it.

Hartl said people who chop down a tree full of endangered birds or race a ship through a pod of endangered whales should be held accountable.

Hartl said the administration wants to give wildlife killers a get-out-of-jail-free card.

Hartl said the change would drive imperiled species over the cliff to extinction.

Earthjustice said the government’s new legal position is a prescription for extinction.

Earthjustice said the position is that if you claim you did not mean to kill an endangered species, the law cannot stop you.

Earthjustice said it will see the Trump administration in court about the memo.

Shared opinions

Hartl said limiting the entire definition of take is a flagrant and illegal attempt to rewrite the ESA by unilateral fiat.

NBC News

Killing endangered wildlife is legal if they aren't the target, new Trump rule says

Matthew Brown

Published 17 Sep 2026 accessed 18 Sep 2026

Facts

Former Fish and Wildlife Service director Dan Ashe said the change cuts against the entire history of the Endangered Species Act.

The Fish and Wildlife Service historically held people liable even for accidentally harming protected species such as grizzly bears, manatees and spotted owls.

Experts said timber companies could log Pacific Northwest forests even knowing they might kill nesting birds, and developers could build a dam knowing it would kill salmon.

Ashe, now president of the Association of Zoos and Aquariums, said the change creates a huge loophole.

Administration officials said they are returning the ESA to its original intent after a 2024 Supreme Court decision that limited agencies' authority to interpret environmental statutes.

Ashe said the change completely relieves people of responsibility for even easily predicted consequences.

States and conservation groups have filed lawsuits seeking to reverse the ESA changes.

Officials under Trump, encouraged by Republican lawmakers and industry lobbyists, have moved to change key parts of the endangered species law.

Interior officials said ESA take still prohibits harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife.

The directive leans heavily on Justice Antonin Scalia's dissent in a 1995 Supreme Court case.

The Interior Department said Thursday that Nesvik's directive will guide how the July harm rule is put into action.

For decades the government had defined harm to imperiled animals broadly to include encroachments on places where they live.

Environmentalists warned the moves, if allowed to stand, will speed extinctions by letting protected species be killed and opening habitat to destruction.

Noah Greenwald of the Center for Biological Diversity said the change is basically a free-for-all.

Attorney Sandi Snodgrass said under the new interpretation only people acting directly against animals, such as hunters, trappers, anglers and perhaps pesticide users, would need such a permit.

Greenwald said the change is a radical reinterpretation that would put polluters and other industry before the natural world.

Federal officials have long used habitat protection plans and permits for some incidental killings to minimize harm to species.

Snodgrass said some companies may still seek permits to guard against future administrations or citizen lawsuits.

The Endangered Species Act is credited with bringing back the bald eagle, American alligator and California condor from the brink of extinction.

Republicans rolled back several ESA provisions in Trump's first term, Biden reversed those moves, and Trump's second term revived them.

The New York Times reported the directive earlier.

Opinion

The Trump administration's new Endangered Species Act interpretation marks a sea change in how the law is enforced.

Dan Ashe said the ESA change is a huge loophole.

NBC said Trump officials have moved to dismantle key parts of the ESA and make companies exempt from its regulations.

Noah Greenwald said the reinterpretation would put polluters and industry before the natural world.

The Guardian

Trump officials move to dismantle key protection for US endangered species

The Guardian

Published 17 Sep 2026 accessed 18 Sep 2026

Facts

More than 1,600 critically imperiled ESA species face losing further federal protections under the Trump administration's reinterpretation of the 1973 law.

Interior told the Guardian the prior regulatory definition of harm expanded take beyond the text Congress enacted.

Earlier this month 20 states and Washington, D.C., sued over the decision to redefine harm, including dropping habitat modification or degradation from prohibited take.

Interior said the final harm rule restores that interpretation while maintaining the ESA's core protections for listed species.

Earthjustice said the Supreme Court decided the issue in Sweet Home and that ruling still represents the best reading of the ESA.

Since January Trump has moved to weaken federal old-growth forest protections, potentially jeopardizing habitat for 400 endangered species.

At the wolf signing, Trump asked if wolves can be shot as of today, and Agriculture Secretary Brooke Rollins said Burgum has to do a little magic, but yes.

The administration scrapped drilling restrictions near a World Heritage site in New Mexico.

Trump directed his administration to consider delisting gray wolves from the ESA.

Opinion

Brett Hartl said the administration wants to give wildlife killers a get-out-of-jail-free card.

Earthjustice called that legal position ridiculous.

The Guardian said the ESA reinterpretation is the latest in a series of environmental rollbacks.

GBH News

Unintentional killing of endangered species will no longer be prohibited by the feds

Mukta Dharma

Published 17 Sep 2026 accessed 18 Sep 2026

Facts

For decades since the 1970s the Endangered Species Act has been interpreted to prohibit killing an endangered species even if unintentional.

Conservation Law Foundation senior counsel Erica Fuller said individuals and companies will no longer have to take steps to avoid unintentionally killing animals.

GBH said the changes could affect Massachusetts endangered species such as the piping plover.

Lyra Brennan of Mass Audubon said piping plovers, whose population has rebounded in recent decades, are currently protected from unintentional killings in several ways.

Brennan said piping plovers were down to 135 pairs in 1986.

Fuller said the harm definition was removed in a change finalized earlier this month, reducing the government’s ability to protect endangered species’ habitats.

Brennan said Mass Audubon puts up fencing around piping plovers.

Fuller said whether the changes hold up in court is still to be determined.

Opinion

No opinion marked.

Center for Biological Diversity

Trump Administration Directive Would Allow Killing of Endangered Wildlife

Center for Biological Diversity

Published 17 Sep 2026 accessed 18 Sep 2026

Facts

Brett Hartl said the directive stabs at the heart of the ESA by giving federal approval to killing some of America’s most beloved wildlife.

Hartl said killing endangered wildlife is illegal whether that is the actor’s purpose or not.

The directive declares that prohibited take requires an intentional act directed at a particular animal that directly and immediately affects that animal.

The directive tells Fish and Wildlife Service staff to look for an affirmative act, intent directed at an animal, a direct and immediate effect, and a particular animal rather than populations or unoccupied habitat.

Opinion

Hartl said the directive stabs at the heart of the Endangered Species Act.

The Center for Biological Diversity said the directive attempts to strip imperiled wildlife of protections from most activities that can kill or injure them.

Hartl said the Trump administration is desperate to annihilate environmental protections and that the measure is cruel and profoundly unlawful.

The Center for Biological Diversity said the memo attempts to rewrite the ESA take prohibition and end nearly all potential law enforcement under the Act.

Hartl said killing endangered wildlife is illegal whether or not that was the actor’s purpose.

The Center said the Sept. 14 directive goes considerably further than the July harm rule.

The Center said the directive could radically shrink the activities the government treats as unlawful take.

Earthjustice

Earthjustice Responds to Radical New Trump Administration Memo that Sanctions Killing of Endangered Species

Earthjustice

Published 17 Sep 2026 accessed 18 Sep 2026

Facts

The memo is dated Sept. 14, the same day a rule redefining harm under the ESA to allow habitat destruction took effect.

In mid-July Earthjustice filed a lawsuit challenging the change to the regulatory definition of harm.

Earthjustice said loss of habitat is the No. 1 cause of species extinction.

Opinion

Earthjustice said the memo would subvert the purpose of the ESA and jeopardize the survival of countless species.

Earthjustice called the legal position a ridiculous and illegal misreading of the Endangered Species Act.

Earthjustice said the memo twists the ESA into the opposite of its intended purpose.

Earthjustice said the memo seeks to make protecting species the exception rather than the rule.