Montana Wildlife Advocates Sue Over Rollback of Endangered Species Act’s ‘Harm’ Definition

For more than a half century, the strength and durability of federal protections afforded to a suite of endangered species — ranging from grizzly bears and bull trout to whitebark pine and a tiny insect that can only live in Glacier National Park’s namesake meltwater — have hinged on the definition of “harm.” Following the federal government’s recent move to rescind that definition from the Endangered Species Act (ESA), wildlife advocates are heading to court even as other interest groups say the regulatory reform will give land management agencies more local control and greater flexibility in forest management.

Since its passage in 1973, the ESA has prohibited the “taking” of an endangered or threatened species. The term “take” is defined by 10 words: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, and collect. While the other nine verbs represent more direct action against a species, harm’s vagueness has historically been used to create broad protections for the habitat of endangered and threatened species. 

In 1981, the U.S. Fish and Wildlife Service (FWS) officially refined the term harm to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” The National Marine Fisheries Service (NMFS) took on a similar definition as well.

On July 10, the Department of Interior (DOI) announced that it was removing that definition of harm, and not replacing it with another, as a means of returning to the original interpretation of the Act. In the DOI’s press release, Interior Secretary Doug Burgum stated federal agencies had previously “abused the ESA” and burdened the American public. 

“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,” Burgum said. “This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statutes Congress actually passed.” 

Four days later, on July 14, Earthjustice filed its court complaint in a U.S. District Court in Seattle on behalf of Swan View Coalition, Friends of the Wild Swan, and seven other groups. “The move is illegal, in part because harming species through habitat destruction is prohibited by the ESA’s statutory language,” stated a press release. “The regulatory definition repealed by the administration had been on the books for 50 years.”

“When there’s a certain amount of harm, that equates to a taking of that species, it’s unlawful,” Keith Hammer, the head of Swan View Coalition, said in an interview. His concerns lie with the potential implications the decision could have on protected wildlife in Montana — threatened species like the grizzly bear and bull trout have relatively large populations living in the area and depend on specific conditions for survival. 

“What removing this harm definition does,” Hammer said, “is it basically says in order to violate the Endangered Species Act, whether you’re a person or the Flathead National Forest, you have to actually go out and physically kill a grizzly bear or a bull trout or a lynx or a wolf or some other species listed.”  

Hammer is no stranger to litigation over habitat protections afforded by the ESA. The Swan View Coalition previously sued the Flathead National Forest over plans to build logging roads, citing concerns over the potential to negatively impact grizzly bears and bull trout. “We’ve been to court twice,” he said. “And we’ve won twice, and that is all rooted in the harm provision.” 

The ESA created specific mechanisms for private entities and federal agencies to lawfully engage in habitat modification that may impact listed species. Under section 10, private entities can obtain incidental take permits and create a conservation plan. Under section 7, federal agencies are required to consult FWS or the NMFS and receive a biological opinion determining whether the proposed action jeopardizes a protected species. 

As Hammer put it, “As long as you do all these things, and do your best to not strike and kill bears, if you do happen to strike and kill a bear, you’re not going to be held liable under the Endangered Species Act.” 

Proponents of the removal of regulation around harm point out that these provisions are still in place. 

“The rule does not eliminate habitat protections for endangered species,” said Nick Smith, a spokesperson for the American Forest Resource Council (AFRC), a regional trade association that advocates for public forest management and timber harvests. “As an organization, AFRC, and on behalf of our members, we are supporting not just legislation but regulatory reform like this one that empowers public land managers to do more active forest management on these landscapes.”

Smith argued that active forest management is a necessary part of conservation efforts, rather than an infringement — less strict regulation based on “harm” reduces barriers for public forests to enact change. “The practical effect is that it could help provide the Forest Service more flexibility when implementing projects that could have temporary impact but would improve wildlife habitat over the long term,” Smith said.

Issues such as severe wildfires, insects, and disease, he argued, present the greatest threat to wildlife habitat and national forests. “If we’re serious about recovering threatened and endangered species,” Smith said, “we think that it’s important to address these landscape scale threats rather than focusing exclusively on avoiding every short-term management impact we tend to see through these ESA issues.”

For Smith, the removal of harm represented a positive step forward, affording national forests greater ability to manage public land rather than being held back by litigation over potential ESA violations. He emphasized that forest plans are based on “robust public comment” and “the best available science.” 

“If every project is getting litigated in court, if the individual national forests aren’t able to implement their own forest plans and achieve those desired conditions, I think it’s bad for everybody,” Smith said. “It’s bad for Montana. It’s bad for communities. It’s bad for the forest. It’s bad for the wildlife.”

The DOI’s decision to rescind the regulatory definition of harm does not stand alone as a regulatory change to the ESA. Interior Secretary Burgum recently announced the removal of the “blanket rule,” which treated threatened animals as endangered until a specific plan could be put into place, and revisions made to the process of designating a “critical habitat.” In Montana, management of grizzly bears, while still federally protected, was put into the hands of state agencies. 

Hammer has remained critical of the broader intentions of the DOI’s actions. “This is all about giving this habitat over to industry. Whether it’s for grazing, logging, mining, oil and gas, this is about giving the control, and the use, and the extraction of those resources over to industry,” Hammer said. “And to heck with the public, to heck with their interest in having threatened and endangered species on the landscape, and to heck with the threatened and endangered species themselves.”

Arlene Montgomery, the director of Friends of the Wild Swan, questioned the methodology behind the DOI’s decisions. Rather than amend the act itself, which would have to be voted through Congress, the DOI opted to change how it is implemented. “They’re just trying to undermine the Endangered Species Act through changing regulations, but the regulations have to conform to the act,” Montgomery said.

“This has been in the endangered species act for 50 years. It’s been upheld by the Supreme Court,” Montgomery said, referring to Babbitt v. Sweet Home Chapter of Communities for a Great Oregon in which the ruling confirmed that harm includes significant habitat modification. In the federal government’s justification for repealing harm, it adopted the dissenting opinion’s argument in which Justice Antonin Scalia described the definition of harm as a “ruthless dilation” of its meaning. 

The DOI also used the Supreme Court’s decision to overturn Chevron deference, a 40-year doctrine that deferred to federal agencies when enforcing policy. The end of Chevron deference, which followed the high court’s decision in the 2024 case Loper Bright Enterprises, Inc. v. Raimondo, makes it easier for the federal government to roll back cornerstone ESA regulations, including the “harm” definition, according to wildlife advocates. 

“It’s a dangerous precedent when the government thinks that they can just change a regulation that’s implementing an act without changing the act,” Montgomery said. “If you don’t challenge it, like we’re doing and Earthjustice representing us is doing, then it’s like you’re allowing it by default.”

On July 24, co-chairs of the Congressional Animal Protection, Congressman Brian Fitzpatrick, R-Pa., and Mike Quigley, D-Ill., introduced the Safeguarding Endangered Species Act. The act represents a bi-partisan effort that would nullify the ruling and restore harm back to its original definition. 

As required by the Endangered Species Act, FWS and NMFS have 60 days to respond to the court complaint and fix any violation of the Act before the lawsuit can proceed. Both Montgomery and Hammer expect the lawsuit to go to court.

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