Swinomish Tribal Indian Community Chairman Steve Edwards, a seasoned fisherman with over half a century of experience on these waters, underscores the profound historical impact: "Over the past 150 years or so, there’s been significant damage to the habitat, and [the habitat is] what salmon needs." His words resonate with generations of tribal members who have witnessed the ecological unraveling firsthand. Yet, even as tribes commit significant resources to healing these vital ecosystems, a federal policy change enacted in July 2020 by the Trump administration delivered a substantial blow to these restorative efforts, fundamentally altering the interpretation of the landmark 1973 Endangered Species Act (ESA).

Historically, the ESA, widely recognized as one of the world’s most robust conservation laws, defined "harm" to an endangered or threatened species broadly, encompassing the destruction or significant modification of the habitat and resources essential for its survival. This holistic interpretation acknowledged that species cannot exist in isolation from their environments, affording critical protection to entire ecosystems. However, the revised regulations dramatically narrow this scope, stipulating that federal agencies will now interpret "harm" solely as the intentional killing or harming of an individual of a species. This radical redefinition effectively strips away the law’s foundational emphasis on ecosystem-wide protection, shifting the focus from safeguarding critical habitats to addressing direct, observable harm to individual animals, which is often far more challenging to prove and prevent.

In a swift and decisive response, the Swinomish and Squaxin Island tribes filed a lawsuit against the federal government on July 14, 2020, the very day the rule change was finalized. Their legal challenge asserts that the Trump administration’s reinterpretation flagrantly disregarded over 50 years of congressional intent and established Supreme Court case law that consistently upheld the broader, habitat-centric definition of "harm." The tribes articulated the profound stakes in their lawsuit, stating, "Squaxin’s cultural and economic well-being depend upon the health and sustainability of Pacific Salmon and other freshwater and marine resources, which play a central role in the daily lives of Tribal members." For many indigenous peoples, the health of these species is inextricably linked to their identity, spiritual practices, and traditional ways of life.

Chairman Edwards revealed that federal agencies failed to respond to the Swinomish Tribe’s requests for government-to-government consultation regarding these proposed changes. This omission is particularly egregious given the United States’ long-standing trust obligation to Native nations, which mandates meaningful consultation on federal actions impacting tribal lands, resources, and treaty rights. "It feels almost like we’ve been betrayed by our federal trustees," Edwards stated, emphasizing that the rule change directly diminishes their constitutionally protected treaty rights. "It’s super disturbing that we had to fight this fight."

Indeed, a broad coalition of Native nations vehemently opposed these changes during the public comment period in 2019, consistently highlighting the conspicuous absence of tribal consultation and the potentially devastating impacts the new interpretation could unleash on the recovery of imperiled species. Beyond their ecological significance, many of these species hold immense cultural, spiritual, and relational importance for tribal citizens, serving as cornerstones of their heritage and identity. The implications extend far beyond conservation; the rule change could severely disrupt the economies of fishing communities, many of which are tribal, and deprive those who rely on salmon for subsistence, further marginalizing vulnerable populations.

While a majority of the dissenting comments originated from Native nations in the Pacific Northwest, focusing primarily on the plight of salmon, the opposition spanned diverse tribal communities across the nation, illustrating the widespread concern. The Pueblo of San Felipe, for instance, voiced concerns regarding the potential impacts on the iconic monarch butterfly and the rare Suckley’s cuckoo bumblebee, both integral to their ancestral lands. Similarly, the Fallon Paiute-Shoshone Tribe expressed deep apprehension for the Dixie Valley toad, a species they consider a relative and whose habitat is sacred. Cathi Williams-Tuni, Chairwoman of the Fallon Paiute-Shoshone Tribe, eloquently articulated the ecological reality in her public comments: "It is obvious that removing water from a species that needs water to survive harms both individual members of the species and the species’ population." This was in direct reference to a proposed geothermal project near tribal lands, which, although halted in 2022 after the toad was listed as endangered, could potentially resume under the new, narrower ESA interpretation. Williams-Tuni warned of catastrophic consequences: "These harms in Dixie Valley would be catastrophic, permanently ruining the Tribe’s sacred site and ending the ability to use the springs for medicine and ceremonies."

The tribes, in their lawsuit, have urgently requested the court to prevent the regulatory changes, which took effect on September 14, 2020, from proceeding, seeking a decision that declares the new interpretation unlawful and reverts to the previous, more comprehensive definitions of "harm." Although they hope for a timely resolution, tribal leaders are prepared for a protracted legal battle that could span many months.

The ramifications of this rule change extend significant advantages to developers and industrial interests, who may no longer be compelled to consider or mitigate the broader habitat impacts of their activities. Previously, any activity projected to destroy critical habitat in a manner that harmed a protected species would necessitate a rigorous permit process, which typically triggered mandatory tribal consultation. Under the revised regulations, such permits would be required far less frequently, effectively sidelining tribes from crucial decision-making processes. Furthermore, the altered definition now demands proof that the harm was intentional, an exceptionally high legal bar that is notoriously difficult to meet in the complex realm of environmental law, as noted by Bob Anderson, an Oneida Indian Nation visiting professor of law at Harvard Law School and a member of the Bois Forte Band of the Minnesota Chippewa Tribe. Anderson warns that "Companies won’t have any incentives to negotiate with the government or environmental groups or tribes about how their activities are going to affect the listed species," fostering an environment where environmental stewardship takes a backseat to development interests.

The change also casts a shadow of uncertainty over large-scale agreements governing major river systems that host ESA-listed species. Rivers like the Klamath, Elwha, and Columbia currently operate under mandates requiring specific water releases from dams at certain times of the year to support the critical migration and spawning cycles of endangered or threatened salmon. These established agreements, vital for species recovery, are now thrown into question by the new interpretation, making the already arduous task of salmon recovery exponentially more challenging. Kayeloni Scott (Nez Perce and Spokane), executive director of the Columbia River Snake Campaign, a coalition comprising conservation groups, businesses, and the Nez Perce Tribe, emphasizes the daunting path ahead: "We’re not even close to delisting these species. Our goal is abundance – healthy and abundant populations – that’s a whole other level, a whole other tier. Even getting to delisting, we’re pretty far off." The new rule, she suggests, pushes that goal further out of reach.

Anderson acknowledges the inherent strength of the legal arguments put forth by the tribes and environmental groups but also highlights the considerable political risk involved, particularly given the previous administration’s reputation for highly retaliatory actions. A stark illustration of this dynamic unfolded in July 2020 when the Miccosukee Tribe of Indians of Florida joined a lawsuit against the administration over the construction of an immigration detention center within the ecologically sensitive Everglades. Just five months later, in December 2020, then-President Donald Trump vetoed an unrelated bipartisan bill that would have returned ancestral land to the tribe, explicitly citing the tribe’s opposition to the detention center as his rationale. In an unprecedented move, he stated that the Miccosukee Tribe was "unaligned with my Administration’s policy of removing violent criminal illegal aliens from the country." This incident, Anderson contends, sent a chilling message to potential plaintiffs: "That’s a real message there to plaintiffs that they’re going to retaliate against you. You’re locking horns with the federal government."

Despite these formidable legal and political headwinds, Chairman Edwards remains steadfast in his commitment to upholding the sovereign rights of the Swinomish Nation for generations to come. He affirms that the tribe will not falter in its vital restoration work, viewing the protection of their ancestral lands and waters as a sacred duty. "It does impact our sovereignty," Edwards stated regarding the erosion of species protections. "Generations down the road, I want [Swinomish citizens] to be able to exercise their treaty rights like I have done in the past." The legal battle for the Endangered Species Act’s integrity is thus not merely an environmental dispute; it is a profound struggle for indigenous self-determination, treaty rights, and the future of America’s imperiled biodiversity.