On September 14, 2026, the U.S. Fish and Wildlife Service issued an internal memo — known as the Nesvik memo — that fundamentally reinterprets one of American wildlife law's most critical protections. The memo redefines what counts as illegal "take" under the Endangered Species Act, narrowing it so that only deliberate, intentional killings of protected species qualify as violations. Foreseeable, incidental harm — the kind caused by land clearing, industrial development, and logging — no longer triggers the same legal safeguards.

The shift is not a minor procedural adjustment. It reaches into the core of how the ESA has functioned for decades.

What "Take" Has Always Meant — Until Now

The Endangered Species Act defines "take" broadly, encompassing not just direct killing but also harming, harassing, pursuing, and wounding protected wildlife. For more than fifty years, that definition has been the backbone of habitat protection in the United States. Courts and wildlife agencies have long held that destroying the habitat a listed species depends on — even without targeting the animal directly — can constitute illegal take.

The Nesvik memo discards that framework. According to the Animal Welfare Institute, the directive asserts that only purposeful acts directed at individual animals meet the threshold for a violation. The Center for Biological Diversity has noted this represents a position with no prior precedent in the law's history.

Who Benefits — and What Species Are at Risk

The practical beneficiaries of this reinterpretation are industries that operate in or near critical wildlife habitat: real estate developers, timber companies, and large-scale agriculture. As Stateline reported, the memo effectively signals that companies can proceed with projects that predictably kill or displace listed species, as long as those deaths are not the stated intention.

MATR has outlined how the change could accelerate development in areas currently off-limits due to the presence of protected wildlife. Oceanographic Magazine highlighted that marine species are equally exposed, with coastal and offshore activities now facing far less regulatory scrutiny.

Species already fighting for survival — from sea turtles to Pacific salmon to imperiled bird populations — face increased pressure at a moment when many are struggling to recover from decades of habitat loss.

The Legal and Conservation Stakes

Defenders of Wildlife has characterized the memo as part of a broader pattern of dismantling wildlife protections through administrative action rather than legislation. The Hill noted it is the latest in a series of moves weakening ESA implementation during the current administration.

Because the Nesvik memo is an internal FWS directive rather than a formal rule, it was not subject to a public comment period. That means the public had no formal opportunity to weigh in before the policy took effect.

Add Your Voice

The FWS Director has the authority to rescind this memo. A growing coalition of conservation organizations is calling for exactly that — and public pressure matters. Sign the petition today to demand the Nesvik memo be withdrawn and the full protections of the Endangered Species Act be restored.

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