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Not the Target: A Federal Directive Decriminalizes Killing Endangered Species
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Not the target.
A new federal directive says killing an endangered animal is only illegal if you meant to kill that animal. Fell the tree full of protected bats, drown the salmon run behind a dam, run the ship through the whales — none of it counts, so long as the creatures weren't the point.
The directive and the law it contradicts are FACT — a written FWS order that runs against a 1995 Supreme Court ruling. That it guts the Endangered Species Act and speeds extinctions is the experts' forecast, graded PROBABLY TRUE and now headed for the courts.
We carry the administration's 'original intent' defense and its post-2024 statutory-interpretation argument. We don't claim the ESA is repealed or that intentional killing is now legal — the change is to incidental-take liability.
A Sept. 14, 2026 directive redefines an illegal 'take' as one that intentionally targets a particular animal.
FWS Director Brian Nesvik's directive tells staff to treat conduct as unlawful 'take' only when it meets four elements: an affirmative act; intentionally directed at an animal; a direct and immediate effect; a particular animal, not populations, future occupants, or unoccupied habitat. Nesvik: '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,' and a vessel striking a whale hasn't taken it 'because the vessel's course was not set against the whale.' It reverses decades of holding people liable for foreseeably (even accidentally) harming grizzlies, manatees, and spotted owls. First reported by The New York Times.
Congress and the Supreme Court already rejected the 'intentional targeting only' reading.
The ESA makes it unlawful to 'take' a listed species and defines 'take' as 'to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.' In Babbitt v. Sweet Home (1995), the Supreme Court held 6–3 that the government's definition of 'harm' to include 'significant habitat modification or degradation that actually kills or injures wildlife' was lawful — and the majority expressly rejected the argument that 'take' is limited to conduct intentionally directed against particular animals. The Nesvik directive adopts the view of Justice Scalia's dissent, which lost.
It follows a July 2026 rule scrapping the definition of 'harm' — and rests on 'original intent' + the end of Chevron deference.
In July 2026 FWS finalized a rule rescinding the regulatory definition of 'harm' (which had covered habitat modification that kills/injures wildlife); the Sept. 14 directive applies it and goes further, imposing intentional-targeting on 'take' generally. The administration frames it as returning the Act to its 'original intent,' citing the 2024 Loper Bright decision limiting agencies' interpretive authority; the July release invoked 'American energy independence' and 'regulatory predictability.' Interior stresses 'take' still bars 'harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting' — carried.
In practice, it exempts logging, dams, mining, and development from liability for the wildlife they predictably kill.
Timber companies could log Pacific Northwest forests knowing it kills imperiled nesting birds; developers could build a dam knowing it kills salmon; the same logic covers mining, water diversions, and ship strikes on whales. Sandi Snodgrass, an industry-side attorney (Holland and Hart; clients include developers, energy companies, utilities), said the only people still needing an incidental-take permit would be those acting directly against animals — hunters, trappers, anglers, perhaps pesticide users — though some companies may still seek permits to guard against future administrations or citizen suits.
Experts say it guts the Act and will speed extinctions — and it's headed to court.
Contested, so graded as a well-supported forecast. Dan Ashe (Obama-era FWS director, now head of the Association of Zoos and Aquariums): the change 'cuts against the entire history of the Endangered Species Act' and 'creates a huge loophole' that 'completely relieves people of any responsibility … even consequences that can be easily predicted.' CBD's Noah Greenwald: 'basically a free-for-all' that would 'put polluters and other industry before the natural world'; Brett Hartl: 'cruel and profoundly unlawful.' States and conservation groups have filed numerous suits; because the directive squarely conflicts with Babbitt, its survival is uncertain. The ESA is credited with saving the bald eagle, American alligator, and California condor.
'A loss for future generations' isn't a slogan — biodiversity loss reaches human communities, and it's been measured.
The chain is documented. The 2019 IPBES Global Assessment (145 experts, 50 countries, ~15,000 sources) found ~1 million species threatened with extinction and warned the decline is 'eroding the very foundations of our economies, livelihoods, food security, health and quality of life'; 75% of land and ~66% of ocean are significantly altered, >75% of food crops depend on pollinators, and IPBES put $235–577B in annual crop output at risk from pollinator loss (WWF's Living Planet Report 2024: monitored wildlife down 73% since 1970). And the human toll is quantifiable: in a peer-reviewed 2024 American Economic Review study, Frank & Sudarshan found the diclofenac-driven collapse of India's vultures raised human mortality by more than 4% — an estimated half a million additional deaths over five years — via the resulting sanitation shock. These are the general stakes of biodiversity loss, not a claim this one directive causes them all.
A public inheritance, converted into an industry discount.
The Endangered Species Act made the survival of a grizzly or a salmon run a constraint on what a timber or energy company could do — treating wildlife as a shared inheritance, not a line item. The directive flips it: the company keeps the profit, and the loss — an animal that can never be replaced — is pushed onto everyone, including everyone not yet born. The agency's own words name the beneficiary: 'energy independence' and 'regulatory predictability' for the industries doing the killing. Extinction is the one policy outcome with no appeal and no reversal — and the bald eagle, the alligator, and the condor were pulled back from its edge by exactly the enforcement this memo ends.