U.S. Court of Appeals Denies Petition for Rehearing in Endangered Species Act Litigation Involving Florida Panther

On October 25, the U.S. Court of Appeals for the Eleventh Circuit rejected the latest effort by the Conservancy of Southwest Florida and other activist organizations to force the U.S. Fish and Wildlife Service to designate private and public land as critical habitat for the Florida panther.

Representing some of the largest landowning companies in Florida, Hunton & Williams LLP has been assisting in efforts to develop an innovative plan known as the Florida Panther Protection Program to conserve private lands for the benefit of the panther, while also helping to ensure that carefully planned development can proceed. The plan is endorsed by leading wildlife organizations, and a wide range of other stakeholders. The Eleventh Circuit's latest decision opens the way to move forward on official federal authorizations for the Florida Panther Protection Program.

The court denied a petition for rehearing en banc filed by the Conservancy, thereby reaffirming the unanimous decision in April in which the court upheld the Service’s denial of the Conservancy’s critical habitat petitions. In April, the U.S. Court of Appeals for the Eleventh Circuit affirmed, by a unanimous decision, the dismissal of a suit to require the U.S. Fish and Wildlife Service to designate millions of acres of land in Florida critical habitat for the endangered Florida panther. The denial of the petition for rehearing ends the litigation within the Eleventh Circuit.

"This affirms a significant victory for our clients, who have faced repeated threats by opponents to use litigation to force the federal government to designate their land as critical habitat for the endangered panther," said Andrew Turner, counsel in the Washington office. "The court's denial of rehearing allows collaborative panther protection initiatives undertaken by our client companies to proceed in coordination with the Fish and Wildlife Service, leading wildlife organizations, and other federal, state, county and private entities."

The litigation began after the Service denied the Conservancy's critical habitat rulemaking petitions in favor of focusing limited resources on other conservation initiatives, such as the Florida Panther Protection Program being jointly undertaken by the Eastern Collier Property Owners and four leading wildlife organizations; the Conservancy subsequently sued and, after a federal district court dismissed the suit, the Eleventh Circuit affirmed.

The Florida panther has been listed as an endangered species since 1967. Over 2 million acres of land in Florida that comprise panther habitat are owned by the federal government or the State of Florida. The Endangered Species Act was amended in 1978 to require the designation of critical habitat for species listed as threatened or endangered from that point forward. The 1978 amendments authorized but did not require the Fish and Wildlife Service to designate critical habitat for previously listed species such as the Florida panther. The Service decided not to initiate rulemaking to designate critical habitat for the panther, instead focusing its limited resources on other conservation initiatives such as the Florida Panther Protection Program. The Service specifically mentioned the Florida Panther Protection Program in its decision to deny the appellants' critical habitat petitions.

The legal team representing The Eastern Collier Property Owners includes Virginia Albrecht, Andrew Turner and Carter Chandler Clements.

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