The U.S. Fish and Wildlife Service (USFWS) issued a new directive outlining how staff should interpret the Endangered Species Act’s (ESA) prohibition on “take” following the rescission of the regulatory definition of “harm.”
In a Sept. 14 memo to USFWS staff, Director Brian Nesvik outlines that the ESA prohibition on “take” only applies to acts intentionally and purposefully directed at an animal. The memo explains that when there is no direct intention to harm an animal, there is no take, however serious the resulting injury to the animal may be.
“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 read, noting that the action is directed at the timber and reaches the animal only indirectly and accidentally.
The explanation follows an earlier rescission of the regulatory definitions of “harm” under the ESA, which took effect in mid-September.
In his memo, Nesvik wrote that the “Harm Rule” rescinded the USFWS’ regulatory definition of “harm” and adopted Supreme Court Justice Antonin Scalia’s interpretation of “take” as set out in the dissent of a Supreme Court case from earlier in the summer.
“Under Justice Scalia’s interpretation, ‘take’ reaches only an affirmative act that is intentionally and purposefully directed at a particular animal,” the memo read. “The action thus reaches an animal without an intervening link, although the consequences of the act might arrive later (as with baiting or poisoning).”
The intentionality element describes the action itself, Nesvik wrote, and is separate from the ESA’s mens rea, referring to the mental state required for criminal liability.
“The ESA’s mens rea attaches to the animal’s biological identity,” the memo read.
Nesvik further writes, “In sum, Justice Scalia’s interpretation begins with one fundamental point: did the actor intend to act on the animal itself. This factor guides interpretation and application of the ESA’s ‘take’ prohibition.”
Environmental groups immediately condemned the memo, calling the action an “all-out war against America’s wildlife.”
Andrew Bowman, president and CEO at Defenders of Wildlife, said, “The administration’s absurdly narrow statutory reinterpretation hamstrings the ESA’s effectiveness and makes a mockery of our nation’s half-century commitment to saving and recovering America’s imperiled wildlife.”
Environmental groups have challenged the rescission of the harm rule in court, while agricultural groups have largely supported the move. — Anna Miller Fortozo, WLJ managing editor
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