Endangered species rule change could eliminate habitat protection
Laura Lundquist
(Missoula Current) More than 20 Montana biologists, wildlife advocates and conservation groups are pushing back against a proposed Trump administration change that could strip the Endangered Species Act of its effectiveness.
On Wednesday, a coalition led by the Flathead-Lolo-Bitterroot Citizen Task Force submitted four pages of comments to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in opposition to a proposed rule change that would remove the definition of “harm” from federal regulations related to the Endangered Species Act.
On April 17, the Fish and Wildlife Service and the National Marine Fisheries Service announced that they were planning to change their decades-old policy that included habitat modification or destruction in the definition of harm to a species. In their proposal, the agencies said that including habitat modification “runs contrary to the best meaning of the statutory term ‘take,’” so they are rescinding the definition of harm. But they’re taking public comment on the proposal until May 19.
According to the Endangered Species Act, the term “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Obviously, take is defined in the 1973 law, but harm wasn’t. So in 1994, the Department of the Interior defined harm in its regulations to include habitat modification. Now, after 30 years of case law supporting the definition, the Trump administration wants to change that.
In response, the wildlife coalition said the proposed change is more than just a matter of semantics - it could actually cause harm to threatened and endangered species. In their letter, the coalition pointed out that Congress had recognized that habitat destruction is the primary cause of species decline. The agencies should also recognize that and keep the regulations as they are.
“Thus, the fate of a threatened or endangered species cannot be separated from the habitat upon which it depends for its survival. The ‘harm’ provision is part of the precautionary principle of the ESA and the management of any sensitive, warranted for listing, threatened or endangered species. This has also been referred to as 'institutionalized caution,'” the coalition said in its letter.
Mike Bader, Flathead-Lolo-Bitterroot Citizen Task Force consultant, said if the definition change goes through, the effects would extend beyond the elimination of consideration for critical habitat.
“It would just gut the Endangered Species Act and the whole consultation process. They’re saying ‘we’re just rescinding the definition of harm,’ but when you do that, you take apart consultation and incidental-take permits and habitat conservation plans,” Bader said. “If there can be no harm from habitat modification, then the amount of modification we would see would be way beyond what we’ve seen over the past few decades.”
Currently, under the Endangered Species Act, when federal agencies, such as the U.S. Forest Service, plan a project, they must consult with the Fish and Wildlife Service on whether or how the project might affect threatened or endangered species in the area. If species will be affected, the Fish and Wildlife Service can issue the project a take permit, which allows a limited amount of species harassment, injury or death. The proposed change would eliminate the requirement for such consultation or permits.
Several logging projects on the Lolo and Flathead Forests have had to make adjustments for grizzly bears, lynx and bull trout. Some failed to do so initially and were taken to court. If the rule changes, logging and mining could eliminate a lot of species habitat in the Northern Rocky Mountains. On the plains, oil and gas companies could drill in sage grouse leks. Dams, reservoirs and irrigation structures could destroy bull trout habitat.
Many wildlife organizations nationwide are condemning the April 17 proposal. The group Rewilding Earth likened the proposal to “allowing someone who destroys a farm family’s crops, equipment and house to claim innocence because they did not kill the farmers themselves.”
The federal agencies are proposing the change in response to a recent Supreme Court decision and a Trump presidential memorandum.
The April 17 federal agency proposal says that the legal underpinning of the definition of harm no longer applies because the Supreme Court recently negated “Chevron deference.”
As part of a 1984 Clean Air Act case, Chevron v. NRDC, the Supreme Court devised a legal test to determine whether or how federal agencies carried out the requirements of a law. If a law clearly stated what to do, that’s what the agency should do. But if the law was ambiguous, the court would defer to agency expertise, since agencies employ scientists and experienced managers who are supposed to review the best available science.
In 1995, the Supreme Court upheld the Fish and Wildlife Service definition of harm in its regulations using “Chevron deference.” But in a ruling last year, the Supreme Court negated Chevron deference, giving judges instead of agencies the power to decide what a law requires if the language is ambiguous.
“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” wrote Justice Elena Kagan in her dissent from the ruling. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
That set the stage for Trump’s April 9 memorandum titled “Directing the Repeal of Unlawful Regulations,” which directs federal agencies to revise or rescind regulations that conflict with the plain meaning of the underlying statute. That is the same language that the federal agencies used in their proposal, saying regulations that contain the 30-year-old definition of harm “do not match the single, best meaning of the statute.”
As a result, the April 17 proposal rejects the finding of the 1995 Supreme Court case, choosing instead to cite the dissenting opinion, where Justice Antonin Scalia objected to the harm definition, saying “take” only applies to a direct effect on an animal, not an act “that indirectly and accidentally cause[s] injury to a population of animals.”
Bader said that was “a silly argument.”
“They’re relying on a dissenting opinion from a Supreme court case, but it doesn’t work that way. The dissenting opinion isn’t the law. Sandra Day O’Connor, one of the more conservative justices, wrote the majority opinion. This has been part of the ESA construct for decades,” Bader said. “Since they can’t win in court, they want to change the rules. And that’s not what the spirit or the letter of the law is. History is against them, but this administration is pulling out all the stops to reduce any regulatory oversight or checks and balances.”
Some legal scholars have argued that Congress wasn’t ambiguous - legislative history shows Congress intended the "take" provision to include habitat modification. Others question the fact that the agency proposal preemptively cited the 2024 Supreme Court decision that overturned the Chevron doctrine, instead of responding to litigation. That’s problematic because the 2024 Supreme Court ruling sought to preserve prior decisions that used Chevron deference, in which case the harm definition should stand.
The coalition pointed out that the current definition of harm requires significant habitat modification so it doesn’t hinder reasonable projects. They added that if Chevron deference is gone, then the federal proposal has its own problems.
“In this case, the Services are not entitled to unbridled deference nor their unique interpretation of the plain language of the ESA as a basis for unraveling decades of findings, rulings and practices that have prevented species from becoming extinct or moving from threatened to endangered status,” the letter said.
The coalition included Doug Peacock, Friends of the Clearwater, Gallatin Wildlife Association, Friends of the Bitterroot, Wilderness Watch, Yaak Valley Forest Council, Montana Wilderness Education School and Save the Yellowstone Grizzly, among others.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com