Defenders Expands Legal Challenge to Trump Administration’s Assault on Endangered Species Act

Defenders of Wildlife today filed an amended complaint challenging the Trump administration's escalating effort to dismantle longstanding protections for threatened and endangered wildlife under the Endangered Species Act.

The amended complaint builds on Defenders' July complaint challenging the administration's rescission of the longstanding regulatory definitions of "harm," which for decades recognized that significant habitat destruction that kills or injures protected wildlife can constitute prohibited "take" under the ESA.

The amended complaint includes a new claim - that the U.S. Fish and Wildlife Service and National Marine Fisheries Service violated the ESA by failing to consult on the rescission to ensure that it would not jeopardize the existence of any ESA-listed species. Given the myriad ways the rescission weakens key protections for endangered and threatened fish and wildlife, this failure to consult is ridiculous and outrageous. It is also illegal. Defenders is adding this claim after waiting the necessary 60 days after sending the Services a notice of intent to sue if they did not remedy this violation.

Additionally, the amended complaint highlights the Services' unlawful reliance on a new interpretation of "take" as applying only to affirmative acts intentionally directed at particular animals as their justification for the rescission. This absurdly narrow interpretation eviscerates the ESA's longstanding framework of addressing "incidental take" - take that results from, but is not the purpose of, an otherwise lawful activity.

"The law has not changed on this administration's say-so. Rescinding the harm definitions doesn't erase 50 years of precedent or that an animal denied its habitat needs ends up just as dead as one that's shot," said Jane Davenport, senior attorney at Defenders of Wildlife. "This administration is hellbent on gutting the ESA, no matter the cost to our precious wildlife heritage. We must seek justice for species and habitats from the courts."

The administration doubled down this month when the FWS and NOAA issued identical memoranda instructing agency staff that an action constitutes prohibited "take" only when it is intentionally and purposefully directed at a particular animal or animals and kills or injures a listed animal.

Under this radical interpretation, otherwise lawful activities that foreseeably kill or injure endangered or threatened wildlife are no longer be considered prohibited take simply because killing the animal was not the purpose of the activity. The memo specifically states, for example, that a vessel that inadvertently strikes a whale has not taken the whale because the vessel was not directed at the whale, and that cutting down a tree containing protected bats does not constitute take unless the tree was felled for the purpose of killing them.

"We are not backing down, and we are not slowing down. Every day this rescission stays on the books is another day industry treats imperiled wildlife's last habitat as disposable. Defenders will keep pressing this case until the courts restore the protections this administration tried to erase - because the wildlife this rule puts at risk doesn't get a second chance if we fail to act now," Davenport said.

The original complaint, filed July 20, 2026, argues that the Services' rescission of the "harm" definitions - that for more than four decades prohibited unauthorized habitat modification or degradation that kills or injures listed species - violates the ESA's text, purpose and 50 years of settled interpretation, including the U.S. Supreme Court's 1995 decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.

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For nearly 80 years, Defenders of Wildlife has worked to protect and restore America's wildlife at risk of extinction, advancing a vision of a future in which wildlife thrives, sustained by broad public support and a resilient network of healthy lands and waters. With a network of more than 2 million supporters, Defenders is an advocate for innovative solutions to safeguard wildlife for generations to come. To learn more, please visit https://defenders.org/newsroom or follow us on Instagram @defendersofwildlife.

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