WASHINGTON, D.C. — Interior Department officials stated that the Endangered Species Act’s prohibition on "take" continues to prohibit harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting protected wildlife. Interior Secretary Doug Burgum stated in a July press release that federal agencies had abused the Endangered Species Act to obstruct lawful land use.

"For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses." Burgum said. The Interior Department stated that the previous definition of harm was an unlawful regulatory intrusion that interfered with private property rights.

Nesvik provided specific examples of how the new interpretation applies to common activities. ""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,"" Nesvik said. He added that indirect impacts do not constitute a violation under the revised guidance.

The directive states that bats impacted by tree felling are affected only indirectly and accidentally. Nesvik also addressed maritime interactions with protected marine life. ""A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale,"" he said.

Twenty states and Washington, D.C. filed lawsuits challenging the administration's changes to the Endangered Species Act. A coalition of 21 attorneys general filed suits challenging the new rule and other proposed changes to the Endangered Species Act. Washington state and California announced the coalition of attorneys general filing suit against the rule.

Washington Attorney General Nick Brown criticized the legal reasoning behind the directive. ""I think we all recognize that if someone destroyed or looted your home, it would be difficult for them to argue that they had not harmed you," Brown said. He argued that the administration's position ignores the reality of ecological damage."

And yet that is exactly what the administration is arguing here when it comes to our most precious species," Brown said. Seven past leaders of the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration signed a letter urging the administration to restore the longstanding definition of harm."

The former agency leaders argued that habitat protection is essential for species survival. "The Administration is arguing that you can protect endangered animals without protecting the places they need to survive," they wrote in the letter. They added that scientific evidence contradicts the new regulatory approach.

The Department of the Interior stated it will vigorously defend its authority to implement the law according to its plain text. The September 14 directive relies on a dissenting opinion from former Justice Antonin Scalia in a 1995 Supreme Court case. The administration cited the 2024 Supreme Court decision in Loper Bright v. Raimondo as limiting the authority of federal agencies to interpret environmental statutes.

More than two-thirds of species listed under the Endangered Species Act depend at least in part on private lands. Ten percent of species on the Endangered Species Act list are found only on private land. Under the new interpretation, only those acting directly against animals, such as hunters, trappers, anglers, and perhaps pesticide users, would need incidental take permits.

The Utah Public Lands Policy Coordinating Office supports shrinking federal involvement in endangered species management. The office pointed to the Ute ladies'-tresses wildflower, which has been listed under the Endangered Species Act for decades despite evidence of large populations in the West. Democratic Senators Adam Schiff and Sheldon Whitehouse introduced a joint resolution to nullify the rule change.

Why It Matters

The Endangered Species Act was enacted in 1973 to protect imperiled species from extinction. The law prohibits the "take" of endangered species, defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting. The recent changes alter how these prohibitions are enforced, particularly regarding habitat modification and accidental harm.

The shift affects more than 1,600 species, many of which rely on private lands for survival. With more than two-thirds of listed species depending at least in part on private lands, the narrowing of the "harm" definition could significantly impact conservation efforts on non-federal property. The legal challenges and legislative responses indicate a disputed debate over the scope of federal environmental authority.

Timeline

The Endangered Species Act prohibits the "take" of endangered species, defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting. The Endangered Species Act was enacted in 1973. In the 1995 case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court ruled 6-3 in favor of including habitat destruction in the definition of harm.

Practices Before the Department of the Interior — Practices Before the Department of the Interior. The Office of Hearings and Appeals (OHA) is issuing this final rule to adopt the interim final rule (IFR) published on January 10, 2025, with a few changes made to respond to public comments, to clarify procedures, and to correct typographical errors.

The Trump administration finalized a rule in July narrowing the definition of "harm" under the Endangered Species Act.

What's New

Republican Representative Brian Fitzpatrick and Democratic Representative Mike Quigley introduced the Safeguarding Endangered Species Act to block the rule repeal. The Safeguarding Endangered Species Act has six additional cosponsors, all of whom are Democrats. The Safeguarding Endangered Species Act remains in the House Committee on Natural Resources.

"The Administration’s rule would erase that longstanding safeguard through regulatory action and leave vulnerable species exposed at the precise moment the law is intended to protect them." A Fish and Wildlife Service spokesperson stated that the lawsuits seek to preserve a decades-old regulatory overreach that expanded the Endangered Species Act beyond the authority granted by Congress. "The supreme court decided this issue in the Sweet Home case and its ruling still represents the best reading of the Endangered Species Act."

How Sources Differ

Sources differ on the specific mechanism and timing of the regulatory changes. The U.S. Fish and Wildlife Service directive dated September 14 states that the Trump administration issued a directive on September 14 reinterpreting the Endangered Species Act to state that inadvertently killing endangered animals is not illegal unless the animals were intentionally targeted.