Like a restless sleeper, the U.S. Fish and Wildlife Service has decided to kick off its “blanket rule” for the second time in six years.
Officially called the “blanket 4(d) rule,” it allowed FWS to give at-risk animals and plants extensive Endangered Species Act protection before a more bespoke recovery plan could be put in action. On August 19, U.S. District Judge Donald Molloy stayed a federal lawsuit brought by two Montana-based organizations that argued the decades-old practice was both illegal and irrational. Defenders of the blanket rule warned its removal could overwhelm an already wobbly agency.
Bozeman-based Property and Environment Research Center and Missoula-based Rocky Mountain Elk Foundation launched the lawsuit in March. They argued FWS’s need for “administrative convenience” in applying strict protections to threatened species actually discouraged stakeholders from wanting to help those species recover.
“While the blanket rule is certainly easier for bureaucrats to administer, it doesn’t work for species like the gray wolf, greater sage grouse and arctic grayling,” PERC’s Vice President of Law and Policy Jonathan Wood said when the lawsuit was announced. Instead, he said it created “perverse incentives” to eliminate critical habitat rather than risk imposition of government oversight for the protected species.
FWS started the process of rewriting the rule shortly after meeting with Wood and other members of PERC on July 25.
The Center for Biological Diversity was one of the blanket rule defenders in the lawsuit. CBD senior attorney Lea Comerford told Mountain Journal eliminating it could cripple ESA protections.
“For decades this rule has helped protect threatened animals and plants,” Comerford said. “It helped speed up the listing process. We’re deeply disappointed the Trump administration is planning to reconsider the rule.”
‘Thumb on the scale’
Soon after the ESA was passed in 1973, the Fish and Wildlife Service accrued hundreds of plants and animals in need of individual protection plans. To handle the backlog, it allowed threatened species to get the same level of protection as endangered species. This “blanket rule” was intended to help with the backlog of at-risk animals and plants that didn’t have individual recovery plans developed yet.
Today, FWS has 1,651 monitored animal species. Of those, 1,219 are endangered and 378 are threatened. Another 86 are considered “experimental.” The numbers don’t exactly add up because some species have both threatened and experimental populations.
The ESA has two levels of protection. An endangered species is in danger of going extinct in the foreseeable future. A threatened species is in danger of becoming endangered in the foreseeable future. Metaphorically, endangered is like the species’ house is on fire, and it needs immediate rescue. A threatened species’ house is next door to the burning house, and needs protection to keep it from igniting too.
In Greater Yellowstone, the black-footed ferret is an ESA endangered species, because only a few hundred remain in the face of disease and habitat loss. The grizzly bear is a threatened species, with about 2,000 in Montana, Idaho and Wyoming. While grizzly numbers are relatively small compared to the 50,000 or more that once roamed the Lower 48 states before Lewis and Clark explored the West, tens of thousands of grizzlies do persist in Canada and Alaska.
The ESA works through restrictions limiting how people or economic development can affect the protected species and its habitat. It prohibits “take” of an endangered plant or animal. “Take” has many meanings in the law, including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect “or to engage in such conduct.”
A threatened species is supposed to have a lighter level of protection, including some possible exceptions to the “take” restrictions. Those tailored restrictions grow out of the research that guides the species’ individual recovery plan.
In 2019, the Trump administration removed the blanket rule and required each species have its own recovery plan before it could be protected by the “take” restrictions. The Biden administration reinstated the blanket rule in 2024.
PERC’s Wood said FWS’s move for efficiency became a way for the service to avoid its hard work.
“Prior to 2019, FWS applied the blanket rule to 75 percent of listed species,” Wood told Mountain Journal. “It would be just a couple of sentences, and that’s the full extent of analysis those species got. And there was no requirement to revisit that.”
The result, according to Wood, has been regulatory inertia that both discourages private landowners from participating in recovery efforts and leaves FWS with a 3-percent success rate at getting protected species off the endangered species list. In contrast, the National Marine Fisheries Service has a 6 percent success rate, Wood said, because it requires tailored regulations for each species it protects.
University of Montana environmental law professor Sandra Zellmer told Mountain Journal the blanket rule was essential to FWS functioning.
“It puts the thumb on the scale preventing take, which is habitat degradation, harassment, shooting, killing, trapping and things like that,” Zellmer said. “Once a species is listed as threatened, it’s already trending toward the brink of extinction. And most species come off the list because they’ve gone extinct, not fully recovered.”
A big part of the service’s mission is to guide other federal, state and private stakeholders when their actions might affect an ESA-protected species. The Trump administration has issued numerous executive orders and policies requiring FWS to expedite or eliminate barriers to energy development, logging and other economic activity. That’s happening at the same time FWS is losing about 40 percent of its workforce through firings, hiring freezes and resignations.
“[The blanket rule] puts the thumb on the scale preventing take, which is habitat degradation, harassment, shooting, killing [and] trapping.”
Sandra Zellmer, environmental law professor, University of Montana
The blanket rule has another advantage, Zellmer said, in that it allows the agency to quickly work on specific threats to a species while buying time to complete a more comprehensive recovery strategy.
“It’s much easier to do the permitting of a specific project [that affects an endangered species] than dealing with the status of a threatened species in its entirety,” Zellmer said. “You’d need a legion of FWS biologists to get all those tailored rules, and Lord knows we don’t have them.”
PERC’s Wood agreed staffing reductions could affect the service’s ability to process ESA tasks. But he disagreed with the idea that tailored protection plans were harder to build than incidental permits were to design.
“We think the process of creating rules is not as taxing as permitting,” Wood said. “It’s better to, at the front end, be thoughtful about what you want to regulate and why. Permitting is a way more costly process.”
When Trump returned to office in 2025, he issued an executive order calling for a review of ESA regulations that hindered energy development. Secretary of Interior Doug Burgum followed with an order to reconsider the blanket rule. A replacement is expected to be published by October 31, according to the lawsuit motion.
That should trigger a public review process. In a statement to the court, FWS Acting Deputy Assistant Director for Ecological Services Elizabeth Maclin said a public comment period of at least 30 days should start in early 2026. A final draft of the rule is expected by October 31, 2026.
