On September 14, 2026, Fish and Wildlife Service Director Brian Nesvik signed an internal memorandum telling agency staff that the Endangered Species Act's prohibition on “take” applies only when an animal is deliberately targeted. The memo confines “take” to “affirmative conduct intentionally directed against a particular animal or animals.”
The examples in the memo are its clearest statement of effect. “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,” it says. And: “A vessel that inadvertently strikes a whale has not taken it, because the vessel's course was not set against the whale.”
The Associated Press described the consequence this way: killing endangered animals “while logging a forest or building a dam would not be considered illegal unless the animals were specifically targeted.”
This is a separate action from the July rule rescinding the regulatory definition of “harm,” which took effect the same day (see The Trump Administration's Repeal of the Endangered Species Act Rule Counting Habitat Destruction as 'Harm' Takes Effect). The Interior Department told AFP the memo “accurately reflects the US Fish and Wildlife Service's guidance for implementing the Endangered Species Act following the final rule rescinding the regulatory definition of 'harm,'” and said the prohibition still covers “harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife.” The Center for Biological Diversity, which posted the memo, argues it reaches further than the rule did: the rule reinterpreted one word, while the memo imposes an intent requirement on “take” generally, a term Congress defined to include harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.
The memo leans on Justice Antonin Scalia's dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. The Supreme Court decided that case 6-3 against the position the memo now adopts. Whether the directive survives that precedent is a legal argument the Center for Biological Diversity is making, not a question any court has yet answered.
Dan Ashe, who ran the Fish and Wildlife Service under Obama and now leads the Association of Zoos and Aquariums, said, “This cuts against the entire history of the Endangered Species Act,” adding, “It just creates a huge loophole. It completely relieves people of any responsibility for their actions, even consequences that can be easily predicted.” Brett Hartl of the Center for Biological Diversity said the directive “stabs at the very heart of the Endangered Species Act by giving federal approval to the killing of some of America's most beloved wildlife.”
An attorney representing developers and energy companies told AP the practical effect is that the only parties needing an incidental-take permit would be those acting directly against animals, though some companies may still seek permits to guard against future administrations or citizen suits.
The instrument matters: this is internal guidance, not a rule. It carried no comment period and no separate effective date, and it is operative on issuance.
Update (October 2, 2026): the memo now faces a legal challenge. On October 1 the Center for Biological Diversity and allies, represented by Earthjustice, filed a supplemental complaint in Seattle adding claims that the memo is unlawful to their existing suit against the repeal of the “harm” definition (Center for Biological Diversity v. Burgum, filed July 14 in the Western District of Washington). “This despicable effort to legalize most killings of endangered wildlife would essentially mean open season on species already on the brink of annihilation,” said Noah Greenwald, the Center's endangered species codirector. The law firm Hunton Andrews Kurth reports that the National Oceanic and Atmospheric Administration's general counsel issued a parallel memo for NOAA Fisheries on September 14, and that the harm repeal faces seven pending federal court challenges.