What matters to me today is: ESA in Disarray
The U.S. Fish and Wildlife Service has dramatically narrowed its view of what constitutes prohibited “take” under the Endangered Species Act—but what that means on the ground remains decidedly unsettled.
Effective September 14, the Service rescinded its longstanding regulatory definition of “harm,” the hook for treating habitat modification that actually kills or injures protected wildlife as prohibited take. Importantly, it adopted no replacement definition.
That same day, Director Brian Nesvik issued a memorandum to the FWS Directorate—senior leadership including Deputy Directors, Regional Directors and national-program Assistant Directors—asserting that “take” should instead follow Justice Scalia’s dissent in Babbitt v. Sweet Home: affirmative conduct intentionally directed at particular animals.
But Sweet Home upheld the former definition as a permissible interpretation; it did not determine that Scalia’s contrary interpretation governed. And Nesvik’s memorandum provides interpretive guidance, not field-level implementation directives.
Thus, three reactions warrant caution.
Litigation challenging the rescission may be premature before the government actually applies its new interpretation. Conversely, landowners should hesitate before assuming habitat-disturbing activities previously requiring take authorization are suddenly lawful.
California should exercise similar restraint under AB 1319, which can trigger provisional CESA candidacy when federal species protections decrease. A wholesale wave of new state protections based solely upon this still-evolving federal landscape would likewise be premature.
The ESA is unquestionably changing. Exactly what replaces the old regime remains very much in disarray. Vigilance is warranted.
That’s what matters to me today in 250 words or less. What matters to you? I’d really like to know.