The REI Rule

Prior to Doug Burgum’s January 16th Senate confirmation hearing to be Secretary of the Interior, the president of the Outdoor Recreational Roundtable and the leaders of 32 of its member organizations signed a letter endorsing Doug Burgum for the position. They believed that Burgum, an “avid outdoorsman” and admirer of Theodore Roosevelt, would be a great partner in “managing, safeguarding, and maintaining America’s public lands and waters, infrastructure, and increasing access so we can pass on the lifelong benefits of time in nature to our children and all future generations.”

Over at the Office of the Secretary of the Interior they had a good laugh—presumably over oven-fresh chocolate-chip cookies—about that. Sure, they said with a wink, we’ll increase access and pass on lifelong benefits to our children: the benefits of natural resource extraction, to be exact, and our children, not yours.

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REI Co-op was among the members of the Outdoor Recreation Roundtable who signed the letter endorsing Burgum. On April 9th, REI president and CEO Mary Beth Laughton retracted their endorsement in a 3-minute video on social media, saying, “Our public lands are under attack. From the gutting of national park staff to expanded threats of drilling or even selling off public lands, the future of life outdoors has never been so uncertain. . . . The actions that the administration has taken on public lands are completely at odds with the long-standing values of REI. There was an accompanying written statement:

We shouldn’t have signed a letter of support for the nomination of Doug Burgum for Interior Secretary. We apologize to our members. We retract our endorsement. We take full accountability for our actions—and for how we move forward. Today, with The Conservation Alliance and other partners, we are launching an effort to unite the business community in defense of our public lands and waters: Brands for Public Lands. This is just the beginning of our recommitment to endorsing policies, not people.

Things have only gotten worse for people who care about wildlife habitats. The U.S. Fish and Wildlife Service (FWS), which is in Secretary Burgum’s department, and the National Oceanic and Atmospheric Administration (NOAA) have proposed a new rule that would redefine “harm” in the Endangered Species Act so that it would not include destruction of habitat. “Destroying endangered species' habitat wouldn't count as 'harm' under proposed Trump rule,” said one headline. Ridiculous, I thought. Can’t be true.

So, I did what one does: I went straight to the proposed rule. It was worse. The main point of the rule is that “harm,” as listed in the definition of “take¹” in the Endangered Species Act does not include destruction of habitat unless that destruction is done with the intent to kill or capture a specific animal or animals. According to the Fish and Wildlife Service and NOAA, that is the “single, best reading of the statutory text.”

The proposed rule reads as if supervisors at FWS and NOAA found the most junior attorneys not yet dismissed by DOGE and said, “Make this make sense.” Those attorneys then turned to ChatGPT and said, “Make this make sense, and use some case law.” The most relevant case cited was Babbitt v. Sweet Home, but the proposed rule only cites Justice Scalia’s dissent in that 6-3 decision:

As Justice Scalia observed, “[i]f ‘take’ were not elsewhere defined in the Act, none could dispute what it means, for the term is as old as the law itself. To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” In addition, under the noscitur a sociis² canon, the definition of ‘harm,’ like the other nine verbs in the definition, should be construed to require an affirmative act[] . . . directed immediately and intentionally against a particular animal—not [an] act[] or omission[] that indirectly and accidentally cause[s] injury to a population of animals.”

The problem with defining “harm” based on other words around it in a list of terms is that it ignores the larger context. The first of the stated purposes of the Endangered Species Act is to protect “the ecosystems upon which endangered species and threatened species depend.” Destruction of habitat would be directly counter to that purpose, even if done without the intent to kill or capture a specific animal. The Act also directs other agencies to ensure their own compliance with it by ensuring that agency actions will not harm an endangered species through the “destruction, modification, or curtailment of its habitat or range.”

In his majority opinion in Babbitt v. Sweet Home, Justice John Paul Stevens points out that if “harm” is does not include indirect injuries like destruction of habitat, it is just a synonym for other words listed in the definition of “take.” Justice Stevens also points out the absurdity of the dissenting opinion FWS and NOAA are now using to support their proposed rule:

Under the dissent's interpretation of the Act, a developer could drain a pond, knowing that the act would extinguish an endangered species of turtles, without even proposing a conservation plan or applying for a permit unless the developer was motivated by a desire "to get at a turtle," no statutory taking could occur.

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The writers of the proposed rule also argue that their reading is the only one that meets the President’s obligation to “take Care that the Laws be faithfully executed,” and that it is consistent with the decision in Babbitt v. Sweet Home. Once again, they cite Justice Scalia’s dissent, as if he were the only one who wrote an opinion in the case:

We have concluded that our existing regulations, which still contain the definition of ‘harm’ contested in Sweet Home, do not match the single, best meaning of the statute. As Justice Scalia’s dissent in Sweet Home explains, the regulations’ interpretation of the statutory language violates the noscitur a sociis canon, did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA.

None of that is true, of course.

There is a comment period before the rule goes into effect, and FWS and NOAA invite comments³ from people who have reliance interests in the rule. They also add that those interests are likely to be outweighed by constitutional interest because of the Trump administration’s duty to “well and faithfully execute the law.” To date, there’s been little evidence that the administration understands the definitions of “harm” or “well and faithfully.”