The US Fish and Wildlife Service has issued a sweeping new directive that ‘attempts to strip imperiled wildlife of protections’ from most activities that can kill or injure them, the conservation group, the Center for Biological Diversity has argued.

In a memo issued on September 14, the US Fish and Wildlife Service director, Brian Nesvik, attempts are made to ‘fundamentally rewrite’ the Endangered Species Act’ prohibition on “take”, a change that could effectively end nearly all potential law enforcement activity under the Act.

Under the new directive, the unintentional or incidental killing of an endangered whale would not longer be considered illegal – even if that death was easily foreseeable.

“A vessel that inadvertently strikes a whale has not ‘taken’ it, because the vessel’s course was not set against the whale,” the Nesvik memo stated. “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 directive goes substantially further than the administration’s recent elimination of the longstanding regulatory definition of “harm.” It declares that prohibited “take” now requires an intentional act directed at a particular animal, one that directly and immediately affects that animal.

A ruling declared in July this year had already rescinded the regulatory definition of “harm”, which previously covered significant habitat modification that actually kills or injures protected wildlife. The September directive extends ‘considerably beyond that,’ argue conservationists. Rather than reinterpreting the single word “harm”, it sets out requirements it says apply to “take” more broadly – a statutory term Congress originally defined to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

Under the new directive, Fish and Wildlife Service personnel are instructed to identify four elements before an action can be classed as unlawful ‘take’: an affirmative act; an act intentionally directed at an animal; a direct and immediate effect; and a particular animal, rather than a population, future occupants, or unoccupied habitat.

Conservationsists warn that this framework could radically shrink the range of activities the government is willing to treat as unlawful.

This could have potential consequences for logging, mining, development, water diversions, and other activities that foreseeably kill or injure endangered wildlife without deliberately targeting individual animals.

“This stabs at the heart of the Endangered Species Act by giving federal approval to the killing of some of America’s most beloved wildlife,” said Brett Hartl, government affairs director at the Center for Biological Diversity.

“The Trump administration is desperate to annihilate environmental protections, but this incredibly radical measure is both cruel and profoundly unlawful. Killing endangered wildlife is illegal, whether that’s your purpose or not.

“If you chop down a tree full of endangered birds or race a huge ship through a pod of endangered whales, you should be held accountable for your destructive acts. But this administration wants to give wildlife killers a ‘Get out of jail free’ card.

“Imposing new limitations to the entire definition of ‘take’ is a flagrant and illegal attempt to rewrite the Endangered Species Act via unilateral fiat. This would drive imperilled species over the cliff to extinction.”

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