The Trump administration has redefined the term “capture” under the Endangered Species Act (ESA) to exclude accidental deaths of protected wildlife, shielding commercial activities from legal penalties unless harm is intentional.
The change was outlined in a memo from Brian Nesvik, director of the Fish and Wildlife Service (FWS), which instructed regional offices to narrow the legal definition of “capture”—a term that dates back to the 1973 ESA and had previously covered both killing and harming of protected species.
Under the new interpretation, only “active conduct” that specifically targets an individual animal qualifies as a violation. Accidental deaths, such as a ship striking a whale or logging operations killing bats nesting in a tree, are no longer considered “capture” unless investigators can prove intentional action.
The memo cites a 1995 legal opinion by then-Supreme Court Justice Antonin Scalia, which argued that unintended harm does not meet the threshold of “capture.” It took effect on September 14, 2026, the date set after an internal review of the agency’s policies. The Interior Department confirmed the directive applies only to cases where an act is deliberately aimed at a protected animal, leaving active hunting, shooting, or harassment still prohibited.
Environmental groups condemned the shift, warning it weakens core protections. Brett Hartl of the Center for Biological Diversity called the change a “gutting” of the ESA’s intent, potentially leaving iconic species like sea turtles, whales, and coral reefs with fewer legal safeguards. Gib Brogan of Oceana Fisheries echoed concerns, stating the move undermines the law’s purpose and could lead to increased threats to already vulnerable marine life.
The redefinition comes amid broader debates over balancing economic activity with wildlife conservation. While the administration frames the change as a clarification of existing law, critics argue it prioritizes industry interests over species survival. They note that courts will have to interpret the new boundaries, especially in cases where harm is unintended but still significant.
Observers note that the policy may affect future permitting decisions for offshore projects, timber harvesting, and other activities that interact with wildlife habitats. The shift could also influence litigation strategies, as attorneys for environmental groups will need to focus on proving intent rather than merely demonstrating that an animal was harmed.