Court Gives Endangered Status Back to West Virginia Northern Flying Squirrel, Rules That Recovery Plans Must Be Followed

A federal judge reinstated endangered status for the West Virginia northern flying squirrel late Friday, holding that the U.S. Fish and Wildlife Service had violated the Endangered Species Act by not following its own recovery plan for the species in its decision to remove protection for the rare animal. The ruling -- made in response to a 2009 lawsuit by the Center for Biological Diversity, Friends of Blackwater, the Wilderness Society, Heartwood, the Southern Appalachian Forest Coalition and WildSouth -- has broad implications for all threatened and endangered species.

"This decision affirms that the scientific criteria in recovery plans for endangered species can't be ignored in a delisting decision or revised by the Fish and Wildlife Service without public input," said Bethany Cotton, an attorney with the Center. "Recovery plans are valuable tools for making sure species have really recovered before Endangered Species Act protections are taken away from them."

Recovery plans lay out science-based criteria, developed by teams specifically expert on the species and habitat in question, that measure whether a species' endangered status should be changed. The overturned rule that removed the flying squirrel's protection acknowledged that not all recovery plan criteria had been met.

Ruling that recovery plans must be followed in any agency decision to downlist or delist a species from the Endangered Species Act, the court wrote that it was not persuaded that "the agency's decision to meet only the 'intent' of its Recovery Plan criteria for the Squirrel complied with the ESA. The statute unambiguously requires that criteria must be 'objective' and 'measurable.' " The court also held that revisions to recovery plans are subject to public notice and comment rulemaking.

"The agencies charged with the protection of endangered species can no longer bend the rules and claim that recovery criteria for species are met 'in intent' when in fact they have not been satisfied," said Cotton. "The endangered West Virginia northern flying squirrel once again enjoys the protections of the Endangered Species Act it so desperately needs in the face of logging, climate change and other serious threats."

The parties were represented by Jessica Almy, Eric Glitzenstein and Howard Crystal of the Washington, D.C., law firm Meyer, Glitzenstein & Crystal and Bethany Cotton of the Center for Biological Diversity.

Background
The West Virginia northern flying squirrel is a small, nocturnal mammal that displays impressive aerial acrobatics using the skin flaps under its arms to soar between trees. Flying squirrels are the oldest line of modern squirrels surviving on the planet, having first appeared 30 million years ago.

The species lives in the high-elevation hardwood forests of West Virginia and part of Virginia and was first protected as endangered under the Endangered Species Act in 1985. The Fish and Wildlife Service issued a recovery plan for the species in 1990 -- and amended it in 2001 -- setting specific criteria for downlisting or delisting the squirrel. In 2008, the Service delisted the squirrel over the objections of scientists and conservation groups.