Fish and Wildlife director tells staff killing an endangered animal is not an illegal 'take' unless the killing was the purpose
The Sept. 14 memo, leaked rather than published, adopts the purpose test the Supreme Court rejected 6-3 in 1995.
The directive. Fish and Wildlife Service Director Brian Nesvik sent staff a directive dated Sept. 14 telling them that killing an endangered animal is not an illegal "take" under the Endangered Species Act unless the act was "intentionally directed at a particular animal or animals." Field staff are told to require four things before finding a violation: an affirmative act, intentionally directed at an animal, with a direct and immediate effect, on a particular animal rather than a population. The examples. The memo's own examples: a ship whose course "was not set against the whale," and a tree that is "not felled for the purpose of killing or capturing" the bats roosting in it. So a timber crew that knows a listed bat colony lives in a stand and cuts it for lumber is not breaking the law. (TS: The 1995 Sweet Home majority said Section 9 makes a knowing act enough — no purpose needed.) The directive reaches individuals and industry alike — logging, development and other projects. How it surfaced. The memo was never printed in the Federal Register. It was leaked, first reported by The New York Times and published by the Center for Biological Diversity. The Interior Department declined an interview. "Unless you're wearing a T-shirt that says, 'I'm here to draw the blood of endangered species,' you're basically off the hook." — Brett Hartl, Center for Biological Diversity The critics. Chris Servheen, who spent 35 years as the agency's grizzly bear recovery coordinator, said the statute becomes "essentially a meaningless law." Still open. No agency has said how many pending permits, consultations or open investigations the directive changes, and no court has ruled on the memo itself.
What the Sept. 14 memo does not shut off:
- Incidental take permits and take statements already issued by Fish and Wildlife and NOAA Fisheries stay valid, and both agencies still issue them
- Section 7 consultation, in which agencies must check projects with wildlife officials, and Section 4 critical-habitat designation are untouched
- Private citizen suits under the Act remain available against companies that build without a permit
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