Feds Look To Redefine ‘Take’ Under ESA, Rescind Public Lands Rule

Federal fish, wildlife and land overseers are proposing to change standing rules that include the habitats of listed species in take protections and balance conservation with extractive uses on vast swaths of public ground in the West.

In filings this week, the US Fish and Wildlife Service and National Oceanic and Atmospheric Administration proposed to cut out the regulatory definition of the word “harm” as it applies to Endangered Act Species-listed critters, while the Department of the Interior is reviewing rescinding what’s known as the Public Lands Rule.

The latter, which is also known as the Conservation and Landscape Health Rule, “affirms that conserving public land is a legitimate and important use – on equal footing with energy development, timber harvest, grazing, and recreation” – of BLM lands, according to a press release from Backcountry Hunters and Anglers, while the former would limit “take” to the actual killing or removal of a listed creature, not destruction of its supporting habitat, a sharp narrowing from a mid-1990s US Supreme Court-affirmed interpretation.

According to USFWS and NOAA, “The existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take.’ We are undertaking this change to adhere to the single, best meaning of the ESA.”

In their filing, they state that the result “may have a significant economic impact by reducing burden on a substantial number of small entities.”

And in a press release, NOAA says it would be “consistent” with a recent SCOTUS decision that “held that an agency’s regulation match the single, best meaning of the statute – not an agency’s own preferred interpretation.”

The potential change has environmental groups up in arms – Center for Biological Diversity called it “callous and reckless” – and it would seem to confirm Washington Fish and Wildlife Commission member Lorna Smith’s professed fears earlier this year about attacks on ESA, a law that is both frustrating and emblematic of a fraying natural world.

Per a recent National Marine Fisheries Service filing in Wild Fish Conservancy and The Conservation Angler v. NMFS et al, i.e., 2024’s Mitchell Act lawsuit, “‘Harm’ is further defined by regulation to include significant habitat modification or degradation that actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.”

There are a wide variety of ESA-listed and fished-on species in the Northwest, including Puget Sound Chinook and steelhead, Interior Columbia summer-runs and Snake River fall kings, Willamette springers and winter-runs, and Oregon Coast coho. Habitat loss and modification is the primary factor in their declines, and habitat restoration is one key factor in the bounceback of one of those populations, Tillamook, Yaquina, Coos and other silver runs, which is approaching recovered status.

One might also wonder what it would mean for treaty rights. According to the Columbia River Inter-Tribal Fish Commission, in 2007, 1974’s Boldt Decision “was extended to address habitat issues, reaffirming the importance of a sustainable fishery to the tribal treaty fishing right. It was also used as a basis to halt a liquefied natural gas terminal in Lummi territory to preserve salmon fisheries and habitat and the culverts case that ordered the State of Washington to replace all salmon-blocking culverts in the state by 2030.”

Per NOAA’s press release, if the new definition is adopted, it would “apply prospectively” – meaning going forward – “and will not affect existing permits.”

As per routine, it’s a lot all at once to process how it might impact fish, fisheries, habitat, maybe hatchery operations, and more, so stay tuned as far smarter people than yours truly analyze the proposal.

Comment on it is open through May 19. Go here to submit yours.

As for the Public Land Rule, it “guides the management of 245 million acres of public lands stewarded by the BLM, balancing uses like energy development and grazing with the conservation of vital habitat and intact landscapes that hunters and anglers depend on,” according to Backcountry Hunters and Anglers.

A BLM webpage describes the relatively recently promulgated rule as helping “safeguard the health of our public lands for current and future generations by ensuring that we:

make informed management decisions based on science, data and Indigenous knowledge. 

protect clean water and wildlife habitat,

restore lands and waters that need it, and

The rule recognizes conservation as an essential component of public lands management, on equal footing with other multiple uses of these lands. 

Americans rely on public lands to deliver food, energy, clean air and water, wildlife habitat, and places to recreate. The BLM knows the importance of balancing the use of our natural resources with protecting public lands and waters for future generations. 

The rule will safeguard these lands and waters to protect our way of life.” 

BHA, which is based in Missoula, says DOI may be moving ahead on rescinding the rule without engaging the public, which would be a sharp contrast with how it came about in the first place during the previous administration.

“The Public Lands Rule reflects years of work, including extensive input from stakeholders, to ensure the long-term health of the landscapes we rely on for healthy fish and wildlife habitat. To abandon the Rule in its entirety – and the overwhelming public support behind it – is a direct affront to those who value America’s wild places, and the democratic process used to steward them for the benefit of all of us as public land owners,” stated Kaden McArthur, BHA director of policy and government relations.

On the flip side, DOI Secretary Doug Burgum is quoted as saying, “It says in the mission statement the job of Interior is to ‘manage and protect … It doesn’t just say ‘protect,’ it says ‘manage and protect.’”

In a lengthy early April tweet, Burgum also addressed ESA, saying in part, “It’s time to fundamentally change how we think about species conservation. Going forward, we must celebrate removals from the endangered list – not additions. The only thing we’d like to see go extinct is the need for an endangered species list to exist. We need to continue improving recovery efforts to make that a reality, and the marvel of ‘de-extinction’ technology can help forge a future where populations are never at risk.”

The Public Lands Rule recision and take redefinition follow a White House executive order from this past winter “to commence the deconstruction of the overbearing and burdensome administrative state.”

For more reporting on the Public Lands Rule, see Outdoor Life‘s article.