Wildlife Service Narrows What Counts as Killing Protected Species

The U.S. Fish and Wildlife Service has told its staff that it will no longer treat the unintentional killing of protected wildlife as a violation of the Endangered Species Act, according to AFP, which reported the change on Thursday. The memorandum, dated Sept. 14 and signed by the agency’s director, Brian Nesvik, narrows the meaning of “take,” the legal term for harming a listed species. The administration confirmed the document’s authenticity to AFP.

Under the memo, a “take” is limited to “affirmative conduct intentionally directed against a particular animal or animals,” AFP reported. The Endangered Species Act, enacted in 1973, makes it unlawful to “take” a listed species and defines the word to include to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect. Under the new reading, AFP reported, deaths from foreseeable risks of activities such as commercial fishing or logging are no longer covered.

The memo follows a final rule published in the Federal Register on July 14 that rescinded the regulatory definition of “harm,” which had included significant habitat modification that actually kills or injures wildlife. That rule took effect on Sept. 14, the same day as the memo. The Fish and Wildlife Service and the National Marine Fisheries Service said in the rule that they were removing the definition without replacing it and that the statute’s own definition of “take” remains in effect.

The agencies’ argument is a legal one. They wrote in the rule that the law’s definition of “take” is “clear and robust” and that its other verbs, such as kill and capture, describe direct acts against particular animals, so “harm” should be read the same way. They cited the 2024 Supreme Court decision in Loper Bright, which ended the practice of deferring to agencies’ reasonable readings of ambiguous laws, and argued that the old definition does not reflect the statute’s “single, best meaning.” They also noted that the ESA addresses habitat through other provisions, including consultations on federal actions and critical habitat designations. The memo cites Justice Antonin Scalia’s 1995 dissent in Babbitt v. Sweet Home, where the court upheld the earlier definition 6-3, AFP reported.

The Interior Department told AFP that under the guidance the ban on take still covers conduct such as harassing, hunting, shooting, killing and trapping. The rule says existing permits and incidental take statements do not have to be reevaluated and that species listings, critical habitat designations and state protections are unaffected.

Conservation groups objected. Gib Brogan, a campaign director at Oceana, told AFP the changes would “cut the heart out of the Endangered Species Act” and said he worried about sea turtles, corals and threatened whales. Only about 380 North Atlantic right whales remain, AFP noted, and their main threats are entanglement in fishing gear and ship strikes. Brett Hartl of the Center for Biological Diversity said it was highly irregular to use a non-binding memo to extend the scope of a binding rule, and that the group is weighing its legal options but would “aggressively challenge it.”

The rule was proposed in April 2025 and drew about 358,000 public comments, according to the Federal Register notice. AFP also reported, without further detail, that automatic protections no longer apply to species listed as threatened and that officials must now weigh economic and national security tradeoffs when designating critical habitat.