Conservation groups say a rule change proposed by U.S. Fish and Wildlife Director Brian Nesvik will get more endangered animals killed.
Nesvik, a former director of the Wyoming Game and Fish Department, laid out a refinement of what it means to “take” an animal protected under the Endangered Species Act. The idea was presented in a memo issued Monday.
Grizzly conservationist Louisa Willcox told Cowboy State Daily a redefinition of "take" will probably get more grizzlies killed in Wyoming, Montana and Idaho.
People might get away with it “if you just basically kill bears for any reason and say, ‘Whoops! We didn’t mean to,” she said. “You may as well just get rid of the law (ESA).”
But William Perry Pendley, former Bureau of Land Management director and Interior Department official, disagrees. Pendley, a Cheyenne native, said tightening the definition of the “take” of wildlife under the ESA will bring the law back to its original intent.
“It will shield innocent people from litigation by the country’s largest law firm, the Department of Justice,” he told Cowboy State Daily.
Under the ESA, "take" is broadly defined as acting to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”
Nesvik’s memo declares that "take" requires an intentional act directed at a particular animal that directly and immediately affects that animal.
“A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale,” according to the memo. “Felling a tree is not a take of the bats roosting in it unless the tree is felled for the purpose of killing or capturing them.”
‘Whoops! We Didn’t Mean To’
Under the Trump administration, the definition of “harm” under the ESA was previously loosened, which presents a threat to grizzly habitat in the Mountain West, Willcox said.
“Destroying habitat is basically like putting a bullet in a bear’s head," she said.
Losing up the parameters of taking grizzlies under the ESA would make the situation that much worse, she said.
Weakening the ESA could also remove the incentive for homeowners to keep their garbage secure in rural areas to avoid human-bear conflicts, she said.
Pendley said fear of the proposed change leading to the mass killing of endangered wildlife is unfounded.
During two stints in the Department of Interior, overly broad applications of “take” under the ESA were stifling and got people needlessly in trouble with the feds, he said.
If even you bothered a creature, he said, that was essentially a ‘take.'”
“Everything was a crime, everything was a take,” said Pendley, director of the BLM for the Trump administration from 2019 to 2021.
During the Reagan administration, he was a deputy interior secretary for energy and minerals under then Interior Secretary James Watt, another Wyoming native.
If the meaning of "take" can be refined to require clear intent, that will still protect animals while also protecting citizens from frivolous prosecution under the ESA, Pendley said.
“The administration is moving to bring the law back to its intent,” he said.
‘Mistaken Identity’
Wayne Pacelle, president of Animal Wellness Action and the Center for a Humane Economy, told Cowboy State Daily that Nesvik’s proposed change could open the door for more “mistaken identity” grizzly killings.
It might be easier for hunters to get away with shooting grizzly bears by claiming they thought they were black bears, Pacelle said.
Under current ESA protections, grizzlies may not be hunted in the Lower 48. Most states, including Wyoming, Montana, and Idaho, have black bear hunting seasons.
There have been some instances of grizzlies being shot by black bear hunters, such as a grizzly shot near the North Fork highway near Cody in 2023.
Mark Heinz can be reached at mark@cowboystatedaily.com.
