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Commandeering

Will the Eleventh Circuit Allow the Endangered Species Act to Commandeer the Florida Department of Environmental Protection?

A pending case will test whether courts are willing to enforce the anticommandeering doctrine in the context of environmental protection.

Jonathan H. Adler | 4.17.2026 10:04 AM

New Hampshire is not the only state subject to court-ordered commandeering. Next week, the U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in Bear Warriors United v. Lambert, in which Florida is appealing a district court order effectively commandeering the state under the Endangered Species Act.

Bear Warriors United (BWU) is an environmental organization "dedicated to defending Florida's wildlife and serving as a powerful voice for nature." Among the species BWU seeks to protect is the manatee, which is currently listed as a "threatened" species under the Endangered Species Act (ESA).

In 2022, BWU filed suit against the Florida Department of Environmental Protection (FDEP) alleging that it was violating the ESA by failing to adopt and enforce sufficiently stringent regulations governing nitrogen discharges from septic tanks and wastewater treatment plants into the Indian River Lagoon, which is frequented by manatees. This failure, BWU alleges, contributes to eutrophication and the loss of seagrasses upon which the manatees rely and is thus a "take" under Section 9 of the ESA, which prohibits actions that "harm" listed species.

At heart, BWU's claim is that the FDEP is "taking" manatees because it is failing to control the private and other activities that threaten manatee populations. As the........

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