Not Everyone Wants To Hear This, But The Trump Administration’s Proposal to Reform Endangered Species Protections Is Good Policy

While most recent news headlines focus on trade wars, Russia, and the economy, the Trump administration is active on a series of additional policy changes that aren’t being talked about, but are significant. One of the most important of these policy changes involves revising the Endangered Species Act (ESA).

The ESA is a well-intentioned federal law designed to protect endangered species from extinction. Unfortunately, since the introduction of the Act over 50 years ago, the Act’s implementation by federal agencies has resulted in countless examples of economic devastation for American families and communities, particularly in rural America. 

The scant media coverage of the proposed changes to the ESA’s implementing rules has been anything but balanced. Articles with headlines like “Destroying Endangered Species’ Habitat Wouldn’t Count as ‘Harm’ Under Proposed Trump Rule” or “By Redefining ‘Harm,’ Agencies Aim to End Longstanding Wildlife Protections” paint this reform as reckless and cruel. If you just skimmed the news, you might assume this is one of the most disastrous and warrantless environmental rollbacks in history.

Setting aside the political rhetoric, the proposed reform actually makes a lot of sense, and is greatly needed if we want the public to continue supporting endangered species conservation. More importantly, the proposed reforms restore Congress’ intent in passing the ESA, reversing decades of agency rules that have distorted Congress’ goal in passing the ESA, along with the plain language of the Act itself.

What’s Good for the Goose, Isn’t Necessarily Good For The Gander

Before we begin, it’s important to understand that there is an inherent tension in implementing the ESA: what is imperative for species conservation can be at odds with the economic and social costs borne by human beings. 

This conflict is especially true for property owners whose land becomes home to a protected species, like a suburban homeowner who unknowingly shares a backyard with a Western Pond Turtle, or a farmer whose grass seed field becomes a nest for a Streaked Horned Lark.

This phenomenon was not lost on Congress when it passed the ESA in 1973, which is why the law was carefully structured to ensure conservation efforts didn’t impose excessive burdens on landowners whose property might be designated as habitat. This balance was key to the ESA’s success then and today.

Unfortunately, federal agencies have stretched the law far beyond its original intent, leading to controversy, lawsuits, and misuse by activist groups that disregard property rights and the need for balance. The result of this abuse is that some believe the only solution is to repeal the ESA entirely.

We believe that reforming how the law is enforced may be a more productive path forward. One way to reform the current ESA rules is by rescinding the expanded definition of what constitutes “harm” to an endangered species.  This definition, found in 50 C.F.R. § 17.3 (“C.F.R.” stands for “code of federal regulations” – these are the federal agency administrative rules), exemplifies agency overreach.  Repealing it is a necessary step in the right direction.

The High Cost of ESA Overreach: Why Reform Matters

Nowhere is inequitable enforcement of the ESA more visible than in the Pacific Northwest. For example, when the Northern Spotted Owl was listed as a threatened species in 1990, the goal was simple: protect a species in decline. But the enforcement of habitat protections came with devastating consequences.

Since the Owl’s listing, timber harvesting restrictions have led to the closure of about 500 sawmills along the Pacific Coast—from Washington to Oregon to California—costing around 33,000 jobs. Families lost their livelihoods, once-thriving towns were left struggling, and state and local programs were cut to the bone.

Today, these same types of issues persist as regulators continue to roll out habitat conservation plans for the northern spotted owl, the marbled murrelet, several salmon species and the coastal marten over large swaths of state forests. These plans will result in additional losses in state timber harvests that go toward local services in counties and special districts, like schools and rural firefighting.

The effects of ESA enforcement don’t just impact the timber industry. Nationwide, ESA enforcement and weaponization has created barriers to our ability to address critical needs like producing more affordable housing and expanding much needed energy production, both renewable and carbon based, or breaking our reliance on foreign suppliers of materials to produce needed technology. ESA “interpretations” from federal agencies have even threatened communities’ access to federal disaster assistance.

All of these issues have fueled a growing demand for ESA reform.

The Problem with the Current Definition Of “Harm”

One of the biggest points of controversy in how the federal agencies interpret the ESA comes from how they interpret the word “harm” in the ESA’s definition of “take” in 16 U.S.C. § 1538 (“Section 9”).  “U.S.C.” stands for United States Code – these are the federal laws passed by Congress.

Section 9 of the ESA prohibits the selling, transporting, and “taking” of listed species. The ESA defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

In practice, Section 9 deals with intentional acts against endangered animals, and many individuals have been prosecuted for poaching endangered animals or attempting to sell them. For example, people have been caught illegally hunting bald eagles, stealing sea turtle eggs, and trafficking endangered jaguar on the black market. This is exactly what Congress intended, and isn’t controversial.

However, after the ESA was enacted into law, federal regulators expanded the meaning of “harm” through agency rulemaking to include human activities that modify the habitat of an endangered species, even if it is unintentional. Specifically, 50 C.F.R. § 17.3 states:

Harm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

This interpretation treats altering land (such as harvesting timber or even farming) as if it were akin to purposefully injuring, poaching, or selling an endangered animal for profit.

The definition of “harm” under 50 C.F.R. § 17.3 has increasingly restricted private property owners from managing their land—such as harvesting timber—without compensation, even when no direct injury to an endangered species occurs.

For example, in Cascadia Wildlands v. Scott Timber Co. (2024), environmental groups successfully blocked a private timber company from logging a small portion of its own land before operations even began, arguing that tree removal would negatively impact threatened marbled murrelets (a type of seabird that nests in mature trees) by disrupting a portion of their breeding habitat. As such, removing the trees would amount to “harm,” and thus a “take” under Section 9.

This landmark decision marked the first instance where a private timber company in Oregon was prohibited from logging due to potential habitat impacts, diverging from the ESA’s original intent of compensating landowners for habitat conservation or providing reasonable alternatives for necessary activities.

The ESA’s Statutory Framework & Legislative History Supports Reform

Cascadia Wildlands v. Scott Timber Co. case was exactly what many feared when the definition of “harm” under the Endangered Species Act (ESA) was expanded.

This concern led private property owners and natural resource industries—particularly those impacted by the listing of the Northern Spotted Owl—to challenge the rule in the 1995 Supreme Court case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. A majority of the Court ultimately upheld the broad definition of “harm” under the controversial “Chevron deference” doctrine (the Court deferred to the agency’s definition of “harm”), but Justice Scalia (joined by Justices Rehnquist and Thomas) strongly disagreed and therefore dissented from the majority decision.

Scalia argued that when Congress enacted the ESA, Section 9’s “take” provision only applied to direct and intentional actions against individual animals, such as hunting or capturing—not habitat changes. Scalia pointed to the ESA’s statutory framework and legislative history, which show that Congress intended to protect the habitat of endangered species under Sections 5 and 7 of the ESA, not through the use of punitive measures in Section 9.  Section 9 was only intended to punish people for taking direct action to harm a member of an endangered species.

Scalia’s point is critical to understanding the ESA.  When Congress passed the Act, it created three separate sections addressing how to protect an endangered species and the habitat of a species. Section 5 authorizes the government to buy private land to protect habitat, ensuring landowners are compensated if species conservation limits their property use. Section 7 generally requires federal agencies to review projects that might impact endangered species and provide reasonable alternatives to minimize harm while allowing development.

As Scalia noted, Congress designed these sections to address habitat concerns separately from Section 9, which focuses on completely prohibiting and criminalizing intentional acts like killing, injuring, or selling endangered species. Which makes sense, because to decide otherwise would (1) be patently unfair to private property owners who are just trying to make use of their land; and (2) render Section 5 and Section 7 pointless. 

Lawmakers made this clear in floor statements when the ESA was passed. For example, Congresswoman Leonor Sullivan (D-Mo) emphasized that habitat protection should be achieved through land acquisition and collaboration, not through blanket restrictions on private landowners:

For the most part, the principal threat to animals stems from destruction of their habitat. […] H. R. 37 will meet this problem by providing funds for acquisition of critical habitat. […] It will also enable the Department of Agriculture to cooperate with willing landowners who desire to assist in the protection of endangered species, but who are understandably unwilling to do so at excessive cost to themselves.

A Step in the Right Direction

In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned the “Chevron deference” doctrine, and directed agencies to follow the “single, best meaning” of a law rather than expanding their regulatory power. This decision has led to a reevaluation of many federal agency rules, including rules regarding ESA enforcement.

Accordingly, the United States Fish and Wildlife Service (USFWS) is seeking to rescind the expanded definition of “harm”, restoring Section 9’s original focus on intentional “take” rather than incidental habitat modification. This change would not affect existing permits, but would ensure that future acts by USFWS would comply with Congress’ true intent when creating the ESA, as outlined by Justice Scalia nearly 30 years ago. 

The OPOA Legal Center submitted comments supporting this proposal and highlighting the need to align ESA enforcement with Congress’s original intent. In our opinion, this rule change isn’t about eliminating protection for endangered species. It’s about making sure the ESA works as Congress intended— protecting wildlife while allowing communities and private property rights to thrive.

We encourage others to do the same and help bring fairness and clarity back to species protection laws. You can submit comments here: Federal Register

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.