Defenders Seeks to Defend Rule Extending Endangered Protections to Threatened Species

Defenders of Wildlife has filed a motion to intervene as a defendant in a case challenging the reinstatement of the U.S. Fish and Wildlife Service’s “blanket 4(d) rule,” which extends the Endangered Species Act’s section 9 protections for endangered species against unauthorized “take” to also include threatened species by default. The Rocky Mountain Elk Foundation and the Property and Environment Research Center filed suit in federal court for the District of Montana, Butte Division, on March 10.

"The blanket 4(d) rule has protected threatened species by default for more than 40 years, all while preserving the Service’s flexibility to tailor species-specific protective regulations,” said Mike Senatore, senior vice president of conservation programs for Defenders of Wildlife. “This rule is well-rooted in the law and sound principles of conservation biology. Defenders stood behind the previous administration’s reinstatement of this rule, and we will stand behind it now.”

The first Trump administration rescinded the longstanding blanket 4(d) rule in 2019, undermining protections for threatened species over Defenders’ vigorous objections. In 2024, the Biden administration reinstated the rule, firmly grounding its decision in the text and legislative history of the ESA, as well as sound biological reasoning. Plaintiffs allege that the rule exceeds the agency’s statutory authority and violates decision-making requirements.

Section 9 of the ESA prohibits unauthorized take of endangered species whether intentional or accidental (such as harassment, harm, wounding, or killing); as well as unauthorized commercial trade. Section 4(d) requires FWS to issue key regulations for the conservation and full recovery of threatened species, and enables the automatic extension to threatened species of protections that endangered species receive. The Service first issued a blanket 4(d) rule for wildlife in 1975, followed by a blanket 4(d) rule for plants in 1977. The blanket 4(d) rule has protected hundreds of threatened species, including piping plovers, southern sea otters and manatees.

Jane Davenport and Daniel Franz, attorneys in the Biodiversity Law Center at Defenders of Wildlife in Washington, DC, and Timothy Bechtold of Bechtold Law Firm in Missoula, Montana, represent Defenders of Wildlife.