Feds Erase ESA ‘Harm’ Definition; Lawsuit Follows Same Day — Otero Officials & Residents Split

ALAMOGORDO, N.M. — A federal rule that erases the 50-year-old regulatory definition of “harm” under the Endangered Species Act took effect in the Federal Register on July 14, and conservation groups sued the same day to block it, setting up a fight whose outcome could shape how habitat on Lincoln National Forest and other Otero County public lands is regulated for endangered species.

The rule, issued jointly by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, deletes the regulatory definition of “harm” from the Code of Federal Regulations at 50 CFR Parts 17 and 222, according to the final rule published at 91 Fed. Reg. 43300. The definition, first adopted in 1975 and narrowed once in 1981, had allowed the government to treat significant habitat modification or degradation as a form of prohibited “take” of a listed species. The rule takes effect Sept. 14, 2026.

The agencies did not replace the definition with a new one. Instead, the final rule adopts the reasoning of Justice Antonin Scalia’s dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the 1995 Supreme Court decision that had upheld the habitat-based definition under the now-abandoned Chevron deference doctrine. Citing the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo, which ended Chevron deference, the Services concluded the habitat-modification definition “does not accord with the single, best meaning of the statutory text.”

What Changes, and What Doesn’t

The statutory definition of “take” in Section 3 of the Endangered Species Act — to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a listed species — is unchanged by the rule. What disappears is the regulatory gloss that had told landowners, ranchers, timber operators and agencies that habitat destruction itself could count as “harm” if it killed or injured wildlife by disrupting breeding, feeding or sheltering.

The final rule states that Section 7 consultations, critical-habitat designations and Section 5 land-acquisition authority are untouched, and that no previously issued incidental-take permit or biological opinion will be reopened because of the change. Fish and Wildlife’s companion Regulatory Impact Analysis put the annualized savings to regulated industry at $361.3 million to $521 million, depending on discount rate, mostly from reduced habitat conservation-plan costs.

Same-Day Lawsuit

Nine conservation organizations — the Center for Biological Diversity, Columbia Riverkeeper, Conservation Law Foundation, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition and WildEarth Guardians — filed a complaint for declaratory and injunctive relief in U.S. District Court for the Western District of Washington in Seattle on July 14, naming Interior Secretary Doug Burgum, Commerce Secretary Howard Lutnick, the Fish and Wildlife Service and the National Marine Fisheries Service as defendants. Earthjustice represents the plaintiffs.

“There’s just no way to protect endangered animals like spotted owls, Florida panthers or grizzly bears without protecting the places they live.” — Noah Greenwald, Center for Biological Diversity

Earthjustice attorney Kristen Boyles said in the group’s joint press release that the repeal “violates the core language of the statute and decades of legal precedent,” while the agencies counter in the final rule that they are simply returning to the plain text Congress wrote, and that the 1975 habitat rule had improperly expanded the law’s reach through regulation rather than legislation.

A Divided Local Record

The comment record built during the 30-day public comment window on the proposed version of the rule, which closed May 19, 2025, shows a lopsided split between Otero County’s individual residents and its governing and industry bodies.

According to the docket at Regulations.gov, 23 comments came from Alamogordo residents and five from Tularosa; none came from Cloudcroft or from county government opposing the rule. All of those individual submissions opposed the rescission, joining roughly 358,000 comments the agencies say they received nationally, the large majority in opposition, before finalizing the rule.

But the only Otero County entities on record took the opposite position. The Otero County Board of County Commissioners — Vickie Marquardt, Gerald Matherly and Amy Barela — submitted a comment supporting the rescission stemming from a May 8, 2025, commission meeting, item 6d, according to the county’s own agenda record and the commissioners’ filed comment.

Gary Scarbrough, chairman of the Otero County Public Land Use Advisory Council, told the agencies the current habit-modification standard had already cost the region economically, pointing to Lincoln National Forest grazing and timber restrictions tied to two federally protected species.

“The timber industry was decimated by the listing of the spotted owl and designation of its habitat. Livestock grazing is on the verge of being totally removed from the Lincoln National Forest because of a so-called endangered illusory New Mexico Meadow Jumping Mouse and its assumed habitat.” — Gary Scarbrough, Otero County PLUAC

Darrell Brown, president of the Otero County Cattlemen’s Association, told regulators in his comment that the habitat-based “harm” standard had affected the local livestock ranching business.

Statewide, the rescission drew opposition from the Native Plant Society of New Mexico, New Mexico Wild, the New Mexico Department of Game and Fish and the Upper Pecos Watershed Association, all of whom filed comments in the docket arguing the habitat definition was central to protecting the state’s listed species.

Why It Matters Here

Otero County sits atop or adjacent to habitat for several federally listed species, including the Mexican spotted owl and the New Mexico meadow jumping mouse, both cited repeatedly in the local grazing and timber disputes referenced in the PLUAC comment. New Mexico currently lists 114 threatened or endangered animal species and 46 plant species, according to the state Department of Game and Fish and the Energy, Minerals and Natural Resources Department.

Because the rule is prospective only, existing habitat conservation plans, grazing permits and incidental-take statements already issued for Lincoln National Forest activities are not automatically reopened. But going forward, federal wildlife managers say they will no longer treat habitat modification alone — absent a direct killing or injuring of an individual animal — as a trigger for Endangered Species Act enforcement, a shift the county commission and local land-use and cattle groups have pushed for and conservation groups are now asking a federal court to block.

The county commission’s position on the rule comes as it separately pursues a recruitment strategy for data centers in the region, an economic-development push Alamogordo Town News has reported on separately.

What Happens Next

The rule is scheduled to take effect Sept. 14, 2026, unless the Seattle lawsuit produces an injunction before then. No hearing date had been set in Center for Biological Diversity et al. v. Burgum et al. as of this writing. The Otero County Board of County Commissioners and other local entities did not join either side of the litigation, according to the case docket.

Note: 

Chris Edwards is an investigative reporter and publisher of 2nd Life Media Alamogordo Town News  and general manager of KALH Radio. Sources: Federal Register, 91 FR 43300 (July 14, 2026); Regulations.gov Docket FWS-HQ-ES-2025-0034; Center for Biological Diversity et al. v. Burgum et al., W.D. Wash.; Otero County Public Land Use Advisory Council; Otero County Board of County Commissioners

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