Bear Warriors united, Inc. v. Secretary, Florida Department of Environmental Protection
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 8, 2026
Docket25-11821
StatusUnpublished
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Full Opinion
USCA11 Case: 25-11612 Document: 100-1 Date Filed: 10/08/2026 Page: 1 of 4
NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-11612
____________________
BEAR WARRIORS UNITED, INC.,
Plaintiff-Appellee,
versus
SECRETARY, FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cv-02048-CEM-LHP
____________________
____________________
No. 25-11821
____________________
BEAR WARRIORS UNITED, INC.,
a Florida Not for Profit Corporation,
Plaintiff-Appellee,
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2 Opinion of the Court 25-11612
versus
SECRETARY, FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cv-02048-CEM-LHP
____________________
Before BRANCH and GRANT, Circuit Judges, and DAMIAN,∗ District
Judge.
PER CURIAM:
Bear Warriors United, Inc., sued the Secretary of the Florida
Department of Environmental Protection (FDEP), alleging that the
FDEP’s wastewater regulatory scheme damaged manatee habitats
in the North Indian River Lagoon and ultimately harmed manatees
in violation of the Endangered Species Act. The district court
granted judgment for Bear Warriors and issued its requested
permanent injunction against FDEP. FDEP appealed. 1
∗ Honorable Melissa Damian, United States District Judge for the Southern
District of Florida, sitting by designation.
1 FDEP filed two notices of appeal. The first, numbered 25-11612, designated
the district court’s judgment as the decision from which it appealed. FDEP
filed the first notice of appeal before the district court entered the injunction
requested by Bear Warriors. The second, numbered 25-11821, designated
both the judgment and the district court’s grant of an injunction as the
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25-11612 Opinion of the Court 3
The Endangered Species Act makes it “unlawful for any
person subject to the jurisdiction of the United States to . . . take
any [endangered] species within the United States or the territorial
sea of the United States.” 16 U.S.C. § 1538(a)(1)(B). “The term
‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such
conduct.” Id. § 1532(19). At the time of the district court’s
judgment, the applicable U.S. Fish and Wildlife Service regulations
further defined “take” with a definition of “harm,” defining “harm”
as “an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where it
decisions under appeal. We granted FDEP’s motion to consolidate the
appeals. But we also separately issued a jurisdictional question as to whether
the first appeal was taken from a final order. We did so because we only have
“jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C.
§ 1291. Generally, “[a] final decision is one which ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000)
(quotation marks omitted). An order is not final if “assessment of damages or
awarding of other relief remains to be resolved.” Liberty Mut. Ins. Co. v. Wetzel,
424 U.S. 737, 744 (1976). But an outstanding dispute over attorney’s fees will
not preclude review of an otherwise final decision because that dispute is
“collateral to . . . the decision on the merits.” Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 199-202 (1988) (quotation omitted). Bear Warriors’s
requested injunctive relief was still pending in the district court when FDEP
filed the first notice of appeal. Thus, the first notice of appeal was premature:
we lack jurisdiction over appeal number 25-11612 and DISMISS it. But we do
have jurisdiction over appeal number 25-11821, which appealed the judgment
and injunction. Accordingly, our decision in this opinion applies to appeal
number 25-11821.
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4 Opinion of the Court 25-11612
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.” 50
C.F.R. § 17.3 (prior to 2026 amendment) (emphasis added). In
concluding that FDEP violated the Endangered Species Act, the
district court relied on this definition of “harm.”
While this appeal was pending, however, the U.S. Fish and
Wildlife Service promulgated a new final rule rescinding the
definition of harm on which the district court relied. See
Rescinding the Definition of “Harm” Under the Endangered
Species Act, 91 Fed. Reg. 43,300 (July 14, 2026) (to be codified at 50
C.F.R. pts. 17, 222). Accordingly, we vacate the judgment and
injunction, and remand for the district court to evaluate what effect
the new rule has on this case. 2
VACATED AND REMANDED.
2 We note that both parties agreed that it would be necessary for us to remand
the case in the event of a new rule.