The Endangered Species Act, officially called the Endangered Species Act of 1973, or ESA, has been the subject of a lot of controversy in the years since it was signed into law by President Richard Nixon. Since that time, different administrations have fiddled around with the enforcement of this law, the purpose of which is (obviously) to protect endangered species. There's a sort of balancing act: The desire to protect threatened wildlife on the one hand, and the need to protect private property rights on the other. Democrats lean toward the former; Republicans, the latter.
That's the background. Now, the Trump administration is steering the ESA's focus back to lean more into the private property rights aspect. To do that, they have changed one term in the regulations enforcing the ESA.
Turns out one word can make a lot of difference.
The Department of the Interior and the Department of Commerce today announced they have finalized a rule rescinding the outdated regulatory definition of “harm” under the Endangered Species Act. The action returns the interpretation of the ESA back to its actual text and original intent, which will end years of federal overreach. Through this action, the Department is delivering the kind of common sense and accountability the American people voted for.
This reform is based on the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which requires agencies to follow the single best meaning of a statute rather than contorting laws to fit political agendas. Using the legally justifiable standard, the Services determined that the prior definition of “harm” was an unlawful regulatory intrusion that interfered with private property rights.
So far, so good. There's a cautionary note in all that, but we will circle back to that (hah). Here are the two chief Trump administration officials charged with enforcing the ESA, Secretary of the Interior Doug Burgum and U.S. Fish and Wildlife Service Director Brian Nesvik, with their comments:
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” said Department of the Interior Secretary Doug Burgum. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”
And:
“This Administration is committed to protecting wildlife using Gold Standard Science, the law and the tools Congress actually gave us,” said U.S. Fish and Wildlife Service Director Brian Nesvik. “We can protect species and respect communities at the same time.”
That seems a fair balance.
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The real change comes, as noted, in that one word. The Pacific Research Institute's Pam Lewison breaks that down.
The federal government recently narrowed the definition of “harm” in the ESA. Citing the Loper Bright decision, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have rescinded the “regulatory definition of ‘harm’” and returned to the broader terminology of “take.” This change almost certainly scales back the scope of the federal government’s role in land management, a win for proponents of smaller government.
The term "take" was expanded as well:
The ESA also clearly defines what “taking” means and expands it beyond the simplified definition of “hunting” to include the following, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
So, what does all this boil down to?
Simply this: In this case, we can have our cake (or moose) and eat it, too. It's all about striking a balance, like so many things are. Most people don't want to see species that, for one reason or another, have become very thin on the ground. We are in a position to protect those species, which no other creature on the planet can do, and that does give us a certain responsibility. But at the same time, we have a responsibility, through our elected officials, to protect private property rights.
Remember, the primary goal of government, any legitimate government at any level, is to protect the liberty and property of the citizens. Anything beyond that, no matter how warm and fuzzy it makes us feel, is a "nice to have."
In this particular issue, the issue of wildlife in general and endangered species in particular, on one end of the scale we have completely unfettered trashing of our environment and the species we share it with; for an example, see any communist country and the ecological havoc you will see raised there. On the other end of the scale, we have governments acting like the Democrat administrations have done to my home state, turning Alaska into a gigantic national park, sealed off and untouched.
With this move, the Trump administration has swung this thing back over to the property-rights side, and that's for the best.
Caveat: The next Democrat administration can undo all of this with the stroke of a pen. Need more motivation to vote in this upcoming election and every election thereafter? Here you have reason number 192,239,344.
