On September 14, the head of the U.S. Fish and Wildlife Service sent a memo to his staff across the country. It told them that killing an endangered animal is no longer illegal unless the person doing it was aiming at that animal.

The memo, signed by Director Brian Nesvik, took effect immediately. It became public only when it leaked, and the Center for Biological Diversity published it.

In the memo's own words, a "take" requires "affirmative conduct intentionally directed against a particular animal or animals." Nesvik gave two examples:

"A vessel that inadvertently strikes a whale has not taken it, because the vessel's course was not set against the whale. 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."

"Take" is the law's word for killing, hurting or capturing a protected animal, and the Endangered Species Act forbids it. Under the new reading, a logging company can cut down a forest it knows is full of endangered bats, and nobody broke the law, because the company was after the trees.

"They led everyone to believe they were doing one thing"

This memo is the second step, and Stateline reported that it goes much further than the feds had told the public. The July rule did say, in the Federal Register, that "harm" should require an act "directed immediately and intentionally against a particular animal." What the public was not shown until the memo leaked was what that means in the field.

In July, the Trump administration finalized a rule saying that destroying the places endangered animals live no longer counts as harming them. Draining a wetland or clearing a forest was legal, the feds said, as long as it didn't directly kill animals. We wrote then about how that threw out a rule that had kept endangered animals alive for decades.

Now Nesvik says that even directly killing the animals is legal, as long as it wasn't on purpose.

"This is an incredibly sneaky and disingenuous way of going about things," Ben Levitan, a senior attorney at Earthjustice, told Stateline. "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.'"

Who it lets off the hook

Stateline called it the most drastic move yet in the administration's campaign to limit the scope of the Endangered Species Act. The people who know the law best agree on what it does:

• Brett Hartl of the Center for Biological Diversity: "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."
• Chris Servheen, who ran grizzly bear recovery for the Fish and Wildlife Service for 35 years, said it would make the law meaningless: "It's like taking the four wheels off your car and saying it's still your car."
• Kate Groetzinger of the Center for Western Priorities called it "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 warned that a hunter who shoots a grizzly can now just say he thought it was a black bear. "This tells law enforcement that they have no ability to prosecute somebody who kills a grizzly bear," he said.

It reaches past the forest, too. Jane Davenport, an attorney at Defenders of Wildlife, said a new road through Florida panther country might no longer need an environmental review, if panthers killed by cars no longer count.

A dissent that lost, turned into policy

In 1995 the Supreme Court decided, 6 to 3, that destroying habitat does harm wildlife under the Endangered Species Act. Justice Antonin Scalia disagreed. He wrote that "take" meant things "done directly and intentionally (not indirectly and by accident) to particular animals."

Davenport said Nesvik's memo "entirely relies on Scalia's dissent." The argument that lost at the Supreme Court is now how the agency will enforce the law.

States were told they could handle it. They said they can't.

When the administration was writing the habitat rule, it said states could protect wildlife under their own laws. State wildlife agencies in Arizona, Georgia, Louisiana, New Mexico, North Dakota, New Jersey, Vermont and Wyoming filed comments raising concerns, and so did the national group that represents state wildlife managers. Experts told Stateline the states don't have the authority, the money or the expertise to take over from the federal government.

Republicans in Congress are pushing the same way. Mike Simpson's spending bill would strip protection from wolves and Yellowstone grizzlies and bar courts from reviewing it. Bruce Westerman wrote a bill that conservation groups call the "Extinction Act."

In summary

On September 14, Fish and Wildlife Service Director Brian Nesvik told agency staff that killing an endangered animal is not illegal unless the act was "intentionally directed" at that animal. The order took effect immediately, went further than the feds had told the public, Stateline reported, and became public only because it leaked. The agency's own former grizzly recovery chief says it leaves the law with "no protection whatsoever for species."

Source

This post is based on reporting by Alex Brown for Stateline, and the Center for Biological Diversity's release of the memo. Photo: Terry Tollefsbol/U.S. Fish and Wildlife Service, via Stateline.