Fish and Wildlife Service now treats accidental killings as outside 'take'

A directive dated 14 September from Brian Nesvik, director of the US Fish and Wildlife Service, tells field offices that the Endangered Species Act's ban on "take" applies only when a person intends to act on a particular animal. Accidental deaths in the course of logging, fishing, shipping or construction would fall outside the prohibition. The New York Times first reported the memo. The Interior Department confirmed its authenticity to AFP on 17 September.

Nesvik's examples are plain. "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." The memo says the person "must intend to act on an animal and must do so for the purpose of affecting the animal." That reading reverses decades of practice in which the Service treated foreseeable, incidental killing as take and then licensed some of it through incidental-take permits that required mitigation.

The directive sits on top of a separate rule. The Fish and Wildlife Service and the National Marine Fisheries Service rescinded the regulatory definition of "harm" in 50 CFR parts 17 and 222. That final rule took effect on 14 September, the same date as Nesvik's memo. Interior's press office, asked about the memo, said the Act "continues to prohibit take of endangered wildlife, including actions that harass, pursue, hunt, shoot, wound, kill, trap, capture or collect listed wildlife, or attempts to do so." The list is the statute's own. What has changed is the mental state the Service will demand before it treats a killing as falling on that list.

Most listed animals in the United States do not die because someone set out to kill them. North Atlantic right whales, of which about 380 remain, are struck by ships and tangled in gear. Indiana bats die when roost trees come down. Piping plovers lose nests to beach driving and dogs. Spotted owls lose stands to harvest. Under the old reading, those industries needed permits and had to change methods. Erica Fuller, senior counsel at the Conservation Law Foundation, said the new reading means "the only time that someone would actually be liable for a take is if they directly and intentionally tried to kill a particular animal." Lyra Brennan of Mass Audubon's Coastal Waterbird Program said tools that have helped piping plovers recover, such as seasonal closures, will be harder to enforce if incidental harm is no longer take.

The Center for Biological Diversity made the memo public. Environmental groups will sue. They will argue that Congress wrote "take" to cover more than targeted hunting and that the Supreme Court's 1995 decision in Sweet Home accepted habitat injury as harm. The administration will argue that the statute's verbs describe purposeful acts and that the agencies were never authorised to treat side effects as crimes. Courts have lived in that argument for 50 years. What is new is an instruction to the people who write tickets and review permits.

Interior said the memo "accurately reflects" how the Service will implement the Act after the harm definition was dropped. That sentence matters more than the press-office reassurance that take is still illegal. If field staff are told a ship strike is not take, they will not open a take case. If they are told a cut tree is not take unless the cutter meant to kill the bats, they will not demand an incidental-take permit for the harvest. Permit books, not slogans, are where the law has operated.

The right whale is a clean test. NOAA and the Service have spent years on speed rules and gear changes because almost no one is trying to kill a right whale and the animals keep dying anyway. If Nesvik's memo governs, those rules lose their ESA hook unless another statute carries them. Logging in bat country is the same test on land. Watch the first harvest plan that cites the 14 September memo and declines a take permit. That filing, not the press statements, will show how far the change runs.